SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 

GIFT  OF 

Roscoe  Pound 


A   MANUAL 


—  OF- 


EQUITY  PLEADING  AND  PKACTICE 

STATE  AND  FEDERAL 


WITH    ILLUSTRATIVE   FORMS,  AND    INCLUDING  THE 

FEDERAL  EQUITY  RULES   OF  COURT.     SPECIAL 

ATTENTION  GIVEN  TO  MODERN  PRACTICE  IN 

RELATION  TO  THE  MASTER'S  OFFICE. 


— BY— 

GEOE(iE  FEEDERICK  EUSH,  A.  M. 

OF  THE  CHICAGO  BAR 


CHICAGO 

Printed  by  the  Chicago  Legal  News  Co. 
1909 


T 
\9o9 


s 


PREFACE. 


These  few  pages  grew  out  of  a  course  of  lectures  de- 
livered for  several  years  at  The  John  Marshall  Law 
School  at  Chicago.  A  limited  time  spent  studying 
one  hundred  pages  of  essentials,  yields  better  results 
than  the  same  time  spent  on  one  thousand  pages, 
through  which  are  scattered  the  same  essentials,  with 
nine  hundred  pages  of  minor  details.  For  mental 
grasp,  students  and  lawyers  prefer  the  small  elemen- 
tary treatise ;  for  later  study  and  reference,  the  larger 
one.  No  small  work  has  been  published  during  the  last 
twenty  years,  and  the  practice  has  modernized  in  many 
respects.  It  therefore  seems  a  fit  time  to  produce  this 
modest  book,  which  it  is  hoped,  may  lighten  the  labors 
of  students  and  lawyers. 

Its  plan  is  different  from  prior  small  treatises.  Its 
aim  is  to  treat  the  main  features  briefly  but  not  less  com- 
pletely than  in  other  works  large  or  small,  and  to  dis- 
cuss only  such  matters  of  procedure  as  most  frequently 
arise,  and  need  to  be  better  understood.  The  book  is 
designed  for  the  studious  lawyer  as  well  as  for  the 
student.  It  is  intended  to  set  forth  the  general  chan- 
cery procedure.  State  and  Federal.  Illinois  cases  have 
been  cited,  where  possible,  merely  to  make  the  book 
more  useful  for  some  particular  State.  Modern  prac- 
tice in  relation  to  the  master's  office  has  received 
special  attention. 

The  practice  in  the  federal  courts  is  largely  con- 
trolled by  the  United  States  Supreme  Court's  equity 
rules,  and  they  are  included  for  ready  reference. 

State  statutes,  governing  chancery  practice,  usually 
provide  that  matters  of  practice  not  therein  provided 
for,  shall  be  *' according  to  the  general  usage  and  prac- 
tice of  courts  of  equity."  The  equity  rules  of  the  Fed- 
eral Supreme  Court,  in  whole  or  in  part,  have  been 
adopted  by  many  of  the  states,  and  thus,  in  substance, 
have  found  their  way  into  many  decisions.  State  and 


Federal,  largely  influencing  the  usage  and  practice  of 
equity  courts  in  this  country.  Equity  rule  90  of  the 
Supreme  Court  provides,  that  in  cases  not  covered  the 
then  (1842)  practice  of  the  High  Court  of  Chancery  in 
England,  may  furnish  a  guide  so  far  as  may  be  consist- 
ent with  local  circumstances  and  conveniences.  There- 
fore, when  a  question  of  practice  is  not  settled  by  the 
usage  and  practice  of  the  state,  or  of  the  United  States 
it  becomes  important  to  consult  the  English  edition, 
1837,  of  Daniels'  or  Smith's  Chancery  Practice,  which, 
together  with  the  general  orders  made  by  Lords  Cot- 
tenham  and  Langdale  (many  of  which  were  closely 
copied  in  the  IT.  S.  Equity  Rules),  are  the  best  author- 
ities on  English  practice  at  the  time  the  United  States 
rules  were  adopted.  (Thomson  v.  Wooster,  114  U.  S. 
104,  112;  Evory  v.  Candee,  17  Blatchf.  200).  Barber's 
Work,  "Chancery  Practice,"  seems  to  be  based  on  the 
old  New  York  Chancery  Rules  and  Daniel's  Work, 
and  thus  sets  forth  more  especially  the  New  York  State 
practice. 

The  writer  desires  to  express  his  thanks  to  his 
friends  Walter  S.  Holden  and  Edward  T.  Lee  for 
their  valuable  suggestions  and  help. 

George  Frederick  Rush. 

Chicago, 

April  1,  1909. 


CONTENTS. 

PAGE 

Introduction     7 

Bills  In  Equity 13 

Tabular  analysis  of  bills  in  equity 15 

Original    bills 16 

Formal  parts  of  bill 16 

Stating  part   of  bill,   continued 20 

Bill   of    interpleader 24 

Multifarious    bill 25 

Impertinence  and  scandal  in  bill 25 

Bills  Not  Original 26 

Supplemental    bills 26 

Bills  of  revivor 27 

Bills  of  review 27 

Cross-bills     29 

Tabular  Chart  of  Bills  Not  Original 33 

Appearance  and  Time  to  Pile  Pleading 34 

Defenses  to  Bill 35 

Demurrer    35 

Plea    39 

Answer    43 

Disclaimer    51 

Chart  of  defenses  in  equity 50 

Replication     51 

Amendments   52 

Masters  in  Chancery,  Duties  and  Powers 58 

Production  of  books  and  writings  before  the  master 61 

Reference  to  state  account 62 

The  master's  report 63 

Objections  and  exceptions  to  master's  report 64 

Special    commissioners 67 

Examiners     70 

Evidence  in  Chancery,  in  General 70 

Taking    testimony 72 

Preserving  evidence  in  the  record 73 

Objections  and  rulings  upon  evidence 75 

Different  forms  in  which  testimony  appears  of  record  in  a 

cause    77 

1.  A  judge's  certificate  of  evidence 77 

2.  A  master's  report  of  evidence 78 

3.  Depositions   79 

4.  Affidavits   79 

Evidence  in  the  master's  office  in  Cook  County 82 


11  CONTENTS. 

PAGE 
Evidence  in  Chancery,  in  General — Continued. 

Objections  to  evidence  in  Cook  County 85 

Nature  of  liearing  before  a  master  in  Illinois 86 

Production  of  books  and  writings  in  evidence 87 

Proof  of  Statutes,  of  Court  Records,  etc 87 

Witnesses    89 

Hearing   in   Court 91 

Decrees  and  Orders 92 

Final  and  interlocutory  decrees 93 

Pro  confesso  decrees 95 

Enforcement  of  decrees 98 

Motions    99 

Dismissal  of  Bill 100 

Costs   101 

Chancery  Record  in  Illinois 102 

Injunctions    103 

Receivers   105 

Ne    Exeat 110 

Parties   112 

Tabular  Chart  of  Parties  in  Equity 115 

Forms    120 

Rules  of  the  Chancery  Courts  of  Cook  County.  Illinois....  159 
Equity  Rules  of  Practice  of  the  Supreme  Court  of  the  United 

States     173 


TABLE  OF  CASES  CITED. 

PAGE 

Acme  Copying  Co.  v.  McLiire 29,  96 

Adams    v.    Gill 57 

Adams  v.  Porter 45 

Adams  v.  Valentine 29 

Aholtz   V.    Goltra 38,    278 

Alexander    v.    Tolleston    Club 105 

Allison  V.   Drake 13 

American  Bible  Society  v.  Price 55,  57 

Angelo  V.  Angelo 20,  216 

Ashmore  v.  Hawkins 45,  299 

Atkinson  v.  Linden  Steel  Co 75,  308 

Badeau  v.  Rogers 29 

Bailey  v.   People 9 

Baker  v.  Adm.  of  Backus 106 

Ballance    v.    Underbill 29 

Bank  v.  Seton 46 

Bank    v.    Sheffey 94 

Banks  v.  Manchester 47 

Barker  v.   Belknap 31 

Barton  v.  Barbour 109,  355 

Bassett  v.   Bratton 110 

Bate  Refrig.  Co.  v.  Gillette 60 

Bates  V.  Garrison 93 

Bates  V.  Skidmore 101,  347 

Bauer  Grocer  Company  v.  Zelle 57 

Baumgartner  v.  Bradt 37 

Beale  v.   Beale 59 

Bean   v.   Clark 41 

Beecber  v.  Bininger 106 

Beese  v.  Becker 97 

Belleville  v.  Citizens'  Ry.  Co 59,  73 

Beneppe   v.    Meier 56 

Benneson  v.  Savage 24 

Bentley  v.   People 62 

Bickerdike   v.   Allen 19 

Bird  V.  Bird 25 

Blair  v.  Reading 100,   331 

Blease  v.  Garlington 73,  74,  77 

Board,  etc.,  v.  Smith 97 

Bolter  V.  Kozolwski 62 

Booth  V.  Clark 108 

Booth  et  al.  v.  Wiley  et  al 55 

(iii) 


IV  TABLE  OF  CASES  CITED. 

PAGE 

Botsf ord  V.   Beers 17 

Bowie  V.    Minter 26 

Boyce's  Executors  v.   Grundy 11 

Brauer  v.   Laughlin 12 

Brewing  Company  v.   Wolford 23 

Brown  v.  Lake  Superior  Iron  Co 11 

Brueggestradt  v.  Ludwig 66,  84,  86 

Bruner  v.  Battell 97 

Bruschke  v.  Verein 27,  36 

Buford  V.  Rucker 116 

Bunnel  v.  Stoddard 77 

Burke  v.  Smith 26 

Bush  V.   Mattox 106 

Caller  v.   Shields 27 

Campbell  v.  Benjamin 30,  46 

Campbell  v.  Powers 20,  58,  93,  209 

C.  &  B.  I.  R.  R.  Co.  V.  Lawrence 77 

Carroll  v.  Tomlinson 59 

Casstevens  v.   Casstevens 18 

Caswell  V.   Caswell 98 

Central  Trust  Co.  v.  Grant  Locomotive  Works 94 

Chaffin  V.  Kimball  Heirs 96 

Chambers  v.   Lecompte 38 

Chambers  v.   Kowe 47 

Chapin  v.  Coleman 40 

Chapman  v.  Barney 116 

Chicago,  etc.,  Ry.  Co.  v.  Chicago  Nat.  Bank 53 

Cline  V.  Cline 37 

Coel  V.   Glos 85 

Coffin  V.  Cooper 25 

Coleman  v.  Lynde 48 

Collins  V.  Manville 13 

Commissioners  v.  Dehor 53 

Contee    v.    Dawson 48 

Cooper  V.  Gum 55 

Cosequa  v.  Panning 85 

Cost  V.  Rose , 95 

Cox  V.  Pierce 60,  79,  83,  84,  85,  328 

Craig  V.  The  People 48 

Crane  v.  Deming 38 

Crawford  v.  Bell 105,  352 

Crockett  v.  Lee 23 

Crombie  v.  Order  of  Solon 107 

Crozier  v.   Acre 101 

Crutcher   v.   Trabue 31 

Cusack  V.   Budasz 59 

Cummins  v.  Cummins 46,  301 

Cushman  v.  Bonfield 44 


TABLE  OF  CASES  CITED.  V 

PAGE 

Davis  V.  Collier 45 

Davis  V.  Davis 69 

Davis  V.  Gray 106 

Davis  V.  Schwartz 61 

Dean  v.   Ford 49 

De  Groot  v.  Jay 109 

Deimal    v.    Brown 47 

Derby  v.  Gage 47,  318 

Devereaux  v.  Fleming 108 

De  Wolf  V.  Pratt 23 

Dickinson  v.  Torrey 86 

Dillon  V.  Barnard 35 

Dodge   V.    Perkins 37 

Dorn  V.  Ross 82 

Dowden  v.   Wilson 45,  56,  295 

DHver  v.  Fortner 18 

Dunn  v.  Keegin 41 

East  India  Co.  v.  Hinchman 35 

Egbert  v.  Gerding 27 

Eisenmeyer  v.  Sauter 78 

Elder  v.  Jones 112 

Ellsworth   V.    Curtis 51 

Ellwood  V.  Walters 76,  77 

Elzas  V.  Elzas 28,  255 

Emerson  v.  Atwater 66 

Ennesser  v.  Hudek 58,  66 

Erissman  v.  Erissman 51 

Farley  v.  Kittson 41 

Farmers  Loan  &  Trust  Co.,  In  re 94 

Fayerweather  v.  Ritch 77 

Fellers  v.  Rainey 27 

Field  V.  Golconda 58 

First  Nat.  Bank  v.  Baker 75,  100,  345 

First  Nat.  Bank  v.  Mansfield 87 

Fitchburg  Steam  Eng.  Co.  v.  Potter 63 

Fitzpatrick  v.  Beatty 20,  45 

Foster  v.  Foster 40 

Fowler   v.    Hamill 94 

Freeney    v.   Freeney 77 

Gage  V.  Bailey 35 

Gage   V.    Brown 57 

Gage  V.   Parker 24 

Gardner  v.  Cohn 30,  45 

Gardner  v.  Watson 39 

Gibson  v.  Rees 58 

Glos  V.  Dietrich 48 


VI  TABLE  OF  CASES  CITED. 

PAGE 

Glos  V.  Hoban 75,  76,  86 

Goelz  V.  Goelz 77 

Goodwin  v.  Bishop 23,  236 

Gorman  v.  Mullins 74 

Gordon  et  al.  v.  Reynolds 55,77 

Gormley  v.   Bunyan 53 

Gould  V.  Banking  Co 60,  84 

Gouwens  v.  Gouwens 30,41 

Graffam  v.  Burgess 53 

Grant  v.  Phoenix  Life  Ins.  Co 39 

Green    v.    Bishop 66 

Green  v.   Bogue 41 

Griswold   v.   Hazard 110 

Grob  V.  Cushman 74 

Grubb  V.  Crane 96 

Gruenberg  v.  Smith 47 

Hahn  v.  Huber 57 

Haines  v.  Carpenter 106 

Hair  v.  Dailey 19,  44,  48 

Hale  V.  Hale 114 

Halligan  v.  R.  R.  Company 24 

Hamilton  v.  Downer 24 

Hamilton  v.  S.  N.  Gold  Min.  Co 76 

Hardin  v.  Boyd 53 

Harding  v.  Durand 21,  53 

Harding   v.    Handy 66 

Harding  v.  Harding 59 

Hards  v.   Burton 58 

Harms  v.  Jacobs 57 

Hathaway  v.   Foy 28 

Haupt  V.  Henninger 79 

Hayes  v.  Hammond 65,  66,  79 

Hayes  v.  Mays 93 

Henderson  v.  Harness 84 

Hewitt  et  al.  v.  Dement  et  al 55 

Higgins,   Estate   of 109 

Hill  V.   Babin 10 

Hill  V.  Chicago  R.  R.  Co 94 

Hills  V.  Parker 109 

Hoagland  v.  G.  W.  Tel.  Co 87 

Hoborst  V.  Hamburg  Am.   Packet  Co 94 

Holbrook  v.  Ford 109 

Holdridge  v.  Bailey 85 

Hollingsworth  v.  Koon 102 

Hook  V.  Richeson 30 

Hooper  v.  Winston 106 

Hopkins  v.  Medley 18,  43,  44 

Horn  V.  Dry  Dock  Co 41 


TABLE  OP  CASES  CITED.  Vll 

PAGE 

Howe  V.  South  Park  Commissioners 29 

Hughes  V.  Blake 41 

Hughes  V.  Bloomer 47 

Hughes  V.  Carne 26 

Hughes  V.  Hatchett 106 

Hurd  V.  Goodrich 66 

Hutchinson  v.  American  Palace  Car  Co 106 

111.  Cent.  V.  Panebiango 75 

Ins.  Co.  V.  Bailey 11 

Intyre  v.  The  People 69 

Jackson  v.  Jackson 27,  247 

Jackson  v.  Lahee 108 

Jackson  v.  Sackett 49,  75,  79 

Jefferson  County  v.  Ferguson 55 

Jeffery  v.  Robbins 94 

Jewell  V.  Paper  Co 64 

Jewett  V.   Sweet 45,  282 

Johnson  v.  Johnson 98,  99 

Johnson  v.  Railway  Co 100,  339 

Jones  V.  Neeley 51 

Judson  V.  Stephens 27 

Karnes  v.  Harper 98,99 

Kaufman  v.  Wiener 11 

Keeley  Co.  v.  Hargreaves 63 

Keller  v.  Ashford 46 

Kilbourn  v.  Sunderland 11 

Kimberly  v.  Arms 61 

King  V.  Cooper 45 

Kingman  v.  Mowry 51 

Knapp  V.  Marshall 93 

Koch  et  al.  v.  Roth 55,  56 

Land  Co.  v.  Peck 59 

Langlois  v.    Matthiessen 100 

Langiois  v.   McCulIom 36 

Larvis  v.  Wis.  Cent 22 

Latta  V.  Kilbourn 94 

Leeds  v.  Insurance  Co 47 

Leggett  V.  Postley 45 

Lester  v.  People 62,  88 

Lester  v.  Stevens 40,  42,  280 

Lewis  et  al.  v.  Lanphere 55 

Lill  V.  Clark 60 

Lincoln  v.  Purcell 35 

Lloyd  V.  Kirlvwood 29,  264 

Loaiza  v.  Superior  C.  T 106 


VIU  TABLE   OF   CASES   CITED. 

PAGE 

Long  V.  Fox 37 

Loughridge  v.  Insurance  Co 47,  313 

Lyman  v.  Bonney 38 

Lyman  v.  Central  Vermont  R.  Co 109 

Lyndon  v.   Lyndon 58 

Lyon  V.   Robbins 98 

Maher  v.  Bull 47,  316 

Mahr  v.  O'Hara 45,  288 

Marble  v.  Bonhotel 55 

Marble  v.  Thomas 64 

Marple  v.  Scott 52,  71 

Martin  v.  Gilmore 98 

Martin  v.  McBryde 24 

Mason  v.  Blair 55,  79 

Mason  v.  Rollins 104 

Massenberg  v.  Dennlson 74 

Maxwell  v.  Kennedy 38 

McArtee  v.  Egart 53,  57 

McCagg  V.  Heacock 31 

McClay  v.  Norris 67,  71,  78,  85 

McClintock  v.  Helberg 28,  259 

McCloskey  v.  McCormick 36 

McConnel  v.  Holobush 25 

McDonald  v.  Asay 26,  253 

McDougald  v.   Dougherty 31 

McDowell  V.  Cochran 36 

McFall  V.  Kirkpatrick 114 

McGeorge  v.  Big  Stone  Co 109 

McGillis  V.  Hogan 30 

McGourkey  v.  North  River  Bridge  Co 94 

McGowan  v.  Young 71 

McMahon    v.    Rowley 85 

McMannomy  v.  Walker 66 

Meagher  v.  Thresher  Co 94 

Mechanics'  Bank  v.  Landauer 109 

Metcalf  V.  Cady 24 

Metropolis  Nat.  Bank  v.  Sprague 29 

Mey  V.  Gullman 47 

Midland  Co.  v.  Anderson 109 

Middleton   v.    Doddswell 107 

Millard  v.  Millard 75,  76,  77 

Miller  v.   Cook 26 

Miller  v.  Jones 107 

Miller  v.  Pecks 41 

Mills  V.   Larrancc 29 

Miltimore  &  Ferry 66 

Moffett  V.  Hanner 62 

Mohler  v.  Wiltberger 100 


TABLE    OF    CASES    CITED.  IX 

PAGE 

Monarch  Brew.  Co.  v.  Wolford 239 

Monroe  Cattle  Co.  v.  Becker 116 

Moore  v.  Bracken 28 

Morgan  v.  Smith 21 

Morton  v.   Smith 20 

Moshier  v.  Pvnox  College 55,  57 

Mosier  v.  Norton 45,  62 

Mosler  v.  Norton 59 

Moss  V.  McCall 59 

Mulcahey  v.  Strauss 109 

Munger  v.  Crowe 37 

Nat.  Bank  v.   Carpenter 38 

Neale  v.  Neale 53 

Neal  V.  Foster 31 

Newell  V.  Bureau  County 23,  227 

No.  Am.  Ins.  Co.  v.  Yates 24 

Oakley  v.   Bend 38 

Ogden  B.  &  L.  Ass.  v.  Mensch 76 

Ohio  R.  Co.  V.  Russell 109 

Ohman  v.   Ohman 75 

O'Neill  V.  K.  C.  R.  Co 101 

Onondaga  Trust  Co.  v.  Spartansburg  Water  Wks.  Co 106 

O'Toole  Estate,  In  re 61 

Owen  V.  Ranstead 72,  78,  83 

Page  V.  Greeley 20 

Parker  v.    Moore 107 

Paxton  V.  Stackhouse 30 

Pennell  v.  Insurance  Co 64 

Pitman  v.  Thornton 27 

Potter  V.  Potter 71 

Prendergast  v.    McNally 64 

President  v.  Wilson 40 

Preston  v.   Hodgen 59 

Primmer  v.  Patten 20,  214 

Primrose  v.  Fenno 101 

Prince  v.  Cutler 79,  84 

Purf ry  v.  Purf ry 24 

Pynchon  v.  Day 87 

Quick  V.  Lamont 32 

Ranger  v.  Champ.  Cot.  Press  Co 108 

Reichl   V.    McGrath 25 

Remsen  v.  Remsen 62,   78 

Rhoads  v.  Rhoads 96 


X  TABLE    OF    CASES    CITED. 

PAGE 

Rhode  Island  v.   Mass 41 

Richards  v.   Barrett 107 

Richmond  v.   Ii'ons 53 

Rigdon  V.  Conley 88 

Roach    V.    Glos 47 

Robinson  v.   Smitli 42 

Rollins  V.  Henry 107 

Russell  V.  Wait 93 

Ryan  v.  Lamsoii 28 

liyan  v.   Sanford 79 

Ryder  v.  Bateman 106 

Sale  V.   Fike 98 

Schneider  v.  Seibert 96 

Schlesinger  v.  Allen 92 

Schnadt  v.  Davis 63,  79,  85,  321 

Scott  et  al.  V.  Harris  et  al 55 

Scott  V.  Millikin 31 

Seller  v.  Schaefer 96 

Sexton  V.  Brock 79 

Shadewald  v.  White 108 

Sheldon   v.    Robbins 23 

Shields  v.  Barrow 30 

Shields  v.  Bush 29,  271 

Singer  v.  Steele 66 

Smith   V.   Billings 84 

Smith  V.   Brittenham 23,   96,    229 

Smith  V.  Potter 71 

Smith  V.   Trimble 75 

So.  Chicago  Brew.  Co.  v.  Taylor 50,  58 

Spangler  v.  Spangler 39 

Spencer  v.   Goodlett 16 

State  V.  Baker 104 

Stafford  v.  Brown 48 

St.  L.  A.  R.  R.  Co.  V.  Hamilton 109,  377 

Stirrat  v.  Excelsior  Mfg.  Company 25 

Story  V.  Livingston 46,  66 

Stow  V.  Russell 20 

Sullivan  v.  Railroad 23 

Supervisors,  etc.,  v.  Miss.  R.  R.  Co 17 

Swift   V.    Castle 75 

Swift  V.  School  Trustees 46,  302 

Tausey  v.  McDonnell 27 

Tesla  V.  Scott 101 

The  Protector 116 

The  Tremolo  Patent 53 

Thompson  v.  Wooter 95 


TABLE    OF    CASES    CITED.  XI 

PAGE 

Titus  V.  Mabie 354 

Toledo  R.  Co.  v.  St.  Louis  R.  Co 11 

Teles  V.  Johnson 24,  243 

Tourville    v.    Piorson 43 

Troy  Iron  v.  Corning • 79 

Trust  Co.  V.  R.  R.  Co 35 

Twiner  v.  Bank 21 

U.  M.  Life  Ins.  Co.  v.  Slee 86,  87 

Varick  v.  Smith 23 

Walker  v.  Powers 24 

Wall  V.  Stapleton 84,  85 

Walwork  v.  Derby 47,  303 

Wangelin  v.  Goe 367 

Wanneker  v.  Hitchcock 107 

Waska  v.  Klaisner 66 

Watts  V.  Rice 28,  248 

Waugh  V.  Robbins 20,  74,  9G,  207 

Weaver  &  Alter 31 

Wheeling  &  B.  Bridge  Co.  v.  Wheeling  Bridge  Co 94 

White  V.  Morrison 21,  51,  77,  78,  219 

Whiting  V.  Bank 27 

Whitney  v.  Mayo 112 

Wight  V.  Downing 30 

Wilcox  V.  Allen 30 

Wilder  v.  Keeler 26 

Wilkin   V.   Wilkin 18 

Williamson  v.  Monroe 12,  274 

Winslow  V.  Noble 23,  222 

Wisner  v.  Barnet 38 

Wolfe  V.  Bradberry 67 

Wolverton  v.  Taylor  &  Co 56 

Woodlan  Bank  v.  Heron 108 

Woods   V.    Morrell 25 

Wooster  v.  Gumbirner 61 

Worthington   v.   Lee 51 

Wright  V.  Frank 30 

Wynn  v.  Taylor 62 

Yarnell   v.   Brown 93 

Yates   V.    Monroe 28 


A  MANUAL 

-OF— 


EQUITY  PLEADING  AND  PEACTIOE 


INTRODUCTION, 

The  principles,  forms  and  precedents  of  the  ancient 
common-law  courts  became  so  fixed  and  narrow  and 
were  so  strictly  adhered  to  by  the  common  law  judges, 
that  frauds  and  wrongs,  disguised  and  protected  under 
the  forms  and  precedents  of  the  common  law,  could  not 
be  adequately  remedied.  The  common  law  judges  had 
fallen  into  the  error  of  following  the  strict  letter  in- 
stead of  scrutinizing  the  reasoning  of  prior  decisions. 
The  King  therefore,  established  himself  as  a  court  of 
extraordinary  powers.  It  became  known  as  a  court 
of  *'the  King's  Conscience,"  a  "Court  of  Equity," 
which  concerned  itself  more  about  substance  or  reason 
than  form,  more  about  the  true  intent  and  effect  of  acts 
than  about  the  form  of  acts,  however  disguised  as 
lawful.  This  court,  while  respecting  the  forms  and 
precedents  of  the  common  law,  did  not  feel  bound  by 
them  to  the  extent  of  withholding  the  justice  demanded 
by  the  peculiar  facts  of  a  case. 

In  time  this  new  court,  by  its  body  of  decisions,  de- 
veloped its  own  principles  or  maxims,  its  own  preced- 
ents, and  its  own  rules,  and  we  have  "reports"  of 
Equity  cases,  as  we  have  "reports"  of  law  cases. 
These  precedents,  in  a  measure,  have  also  become  more 
or  less  fixed;  but  the  historical  purpose  of  this  court 
will  prevent  it  from  falling  into  the  ancient  rigidity 
of  the  common  law.  Certainty,  stability  and  consist- 
ency in  decisions,  are  necessary  to  any  good  system  of 
law.  It  is  the  essence  of  English  and  American  law 
that  a  decision  whether  at  common  law  or  in  equity, 
based  upon  just  and   sufficient  reasons  or  grounds, 


8 

stand  as  law,  except  as  it  must  be  enlarged  or  be  modi- 
fied to  suit  controlling  and  more  just  reasons  (Black- 
stone  70).  That  is  what  is  meant  by  the  doctrine  of 
''stare  decisis;"  that  is  what  is  meant  by  "case  law;" 
that  is  what  is  meant  by  "the  common  law,"  and 
"equity  law."  If  a  former  decision  is  manifestly  un- 
just, it  is  not  law  (Blackstone  70).  Common  and 
Equity  law  are ' '  Judge-made  laws, ' '  a  phrase  much  mis- 
understood. The  phrase  "common  law"  is  often  used 
to  denote  non-statute  law  and  thus  includes  equity  law 
(1  Kent  492).  Broadening  and  changing  with  reason, 
is  the  virtue  and  excellence  of  the  common  law  and 
equity  law,  as  contrasted  with  domestic  statute  law  or 
with  foreign  statutory  codes. 

Statutes  can  be  changed  only  by  legislative  re-enact- 
ment, and  suitors  are  not  permitted  to  appear  there 
for  relief. 

Administrative  statutes,  setting  up  and  regulating, 
not  rights  themselves,  but  the  various  governmental 
agencies  and  procedures  for  the  protection  of  rights,  are 
necessary  to  conserve  rights,  and  are  proper  subjects  for 
the  legislature.  But  statutes  cannot,  so  well  as  courts, 
go  beyond  this  field  and  attempt  to  define  the  infinite 
principles  of  human  justice.  Rights  depend  upon  the 
unforseeable  combination  of  facts  in  each  case.  Pro- 
nouncing what  is  right  or  wrong  under  the  peculiar 
facts  of  a  case,  is  best  done  by  courts,  the  governmental 
agency  established  for  the  purpose.  (Blackstone  61).  If 
the  legislature  could  foresee  every  combination  of  facts 
that  may  occur,  have  them  elucidated  by  opposing 
parties,  and  have  them  pronounced  upon  by  impartial 
experts,  then  these  pronouncements,  embodied  in  stat- 
utes, would  be  something  like  the  law  formulated  by 
equity  and  common  law  judges;  and  they  would  be 
about  as  voluminous.  The  forum  for  administrative 
law  is  properly  the  legislature ;  the  forum  for  the  law 
of  rights,  justice,  is  properly  the  court,  the  only  place 
where,  in  the  course  of  time,  every  conceivable  right  is 
earnestly  asserted,  fully  defended,  strongly  attacked, 
fully  discussed  and  impartially  decided. 

The  inherent  rights  of  man  arise  out  of  his  nature, 


and  tlms  are  not  artificial,  verbal  ideas,  but  facts  de- 
termined by  nature  itself.  These  ''inalienable"  nature- 
given  rights  exist  independently  of  any  expression 
or  pronouncement  by  ruler,  man,  judge  or  legislature, 
(Blackstone  54),  and  it  is  "to  secure"  them  and  "the 
blessings  of  hberty"  that  governments  and  statutes  are 
established  (Declaration  of  Independence;  Constitu- 
tions of  the  United  States  and  of  the  various  States). 
Such  rights  are  broadly  recognized  and  confessed  in 
the  preambles,  or  bills  of  rights  (Bailey  v.  People,  190 
111.  28),  or  other  clauses,  of  state  and  national  constitu- 
tions. 

For  man's  intellectual  use  and  guidance,  however,  it 
is  necessary  that  some  authoritative  agency,  like  the 
courts,  through  their  decisions,  formulate  rights  in  lan- 
guage as  accurately  as  possible  from  time  to  time,  ac- 
cording to  the  light  of  reason,  which  means  according 
to  just  and  true  grounds,  so  far  as  the  race  is  able  to 
perceive  them.  These  decisions  are  law  if  the  reason- 
ing is  sound.  Tims,  in  American  and  English  law,  un- 
like the  foreign  Napoleonic  statutory  code  law,  the 
basic  rights  of  man,  "among  which  are  life,  liberty, 
and  the  pursuit  of  happiness,"  phrases  which  include 
numberless  rights,  are  not  intended  to  be  created  or 
limited  by  statutory  words,  but  are  discoverable  by 
sound  reason  alone;  and  justice  is  "established"  not 
upon  the  words  of  this  or  that  legislature,  or  king,  or 
mob,  not  even  upon  unreasonable  or  degraded  custom, 
but  upon  sound  reason  alone.  "Reason  Is  the  highest 
law,"  said  Cicero.  "What  is  not  reason  is  not  law," 
says  Blackstone.  "He  knows  not  the  law  who  knows 
not  the  reason  thereof,"  says  Coke.  "Her  seat  is 
the  bosom  of  God,"  says  Hooker.  It  is  because  our 
system  of  law  rests  upon  such  foundations  that  the 
American  or  English  lawyer  becomes  a  zealous  stud- 
ent, an  enthusiastic  devotee  of  the  law. 

The  ancient  common  law  judges  exaggerated  the 
importance  and  sufficiency  of  their  own  pronounce- 
ments, and  narrowed  the  meaning  of  stare  decisis.  Had 
they  been  expounders  rather  than  dogmatizers,  there 
would  have  been  no  need  for  the  invention  of  Equity. 


10 

Equity  courts  rescued  English  law  from  the  slavery 
to  the  letter  of  precedents,  into  which  the  common  law 
had  fallen;  and  now  together  they  constitute  one  sys- 
tem, each  court  merely  handling  a  distinct  class  of 
cases,  (1  Story,  sec.  25),  and  both  conservedly  but 
steadily  reforming  and  enriching  the  expression  or 
letter  of  the  law,  thus  guiding  its  stately  progress  to- 
wards the  ''perfection  of  reason." 

The  ancient  office  from  which  chancery  writs  were 
issued  and  to  which  they  were  returned  was  known  as 
the  ^^officina  justitiae/'  or  "the  office  of  justice."  It 
was  also  sometimes  called  "the  court  of  chancery." 
The  officer  authorized  to  issue  the  writs  finally  became 
the  presiding  officer  of  the  court,  and  was  called  the 
Chancellor,  and  later  he  was  known  as  the  Lord  Chan- 
cellor, and  the  court  grew  to  be  the  highest  court  next 
to  Parliament.  The  Chancellor  was  also  called  "the 
Keeper  of  the  Great  Seal"  and  "the  Keeper  of  the 
King's  Conscience." 

From  the  earliest  times  the  Court  of  Equity  exer- 
cised extraordinary  powers,  and  conflicts  arose  between 
its  jurisdiction  and  that  of  the  common-law  courts  as 
early  as  the  fourteenth  century.  In  1616  Sir  Edward 
Coke,  Chief  Justice  of  the  King's  Bench  raised  a  great 
contention  against  the  power  of  Courts  of  Equity  to 
grant  relief  after  a  judgment  at  law  or  against  a  judg- 
ment at  law.  The  King,  James  I,  sustained  his  Chan- 
cellor, Lord  Elsmere,  in  this  controversy.  In  later 
centuries  it  came  to  be  settled  and  accepted  that  Equity 
Courts  could  have  no  jurisdiction  where  there  was  an 
adequate  remedy  at  law.  It  was  established  that  it  did 
have  jurisdiction  where  courts  of  law  could  not  give 
a  definite,  adequate  and  complete  remedy.  If  such  a 
case  is  not  shown  by  the  bill  of  complaint,  even  if  no 
objection  is  made  by  demurrer,  plea,  answer  or  by 
suggestion  of  counsel,  it  is  the  duty  of  the  court  to 
recognize  the  objection  (Hill  v,  Babin,  19  How.  278.) 
Parties  may  not  even  by  consent  confer  jurisdiction 
upon  a  court  of  equity  which  properly  belongs  to  the 


11 

common  law  court.  (Toledo  R.  Co.  v.  St.  Louis  R.  Co., 
208  111.623). 

If  the  court  of  equity  has  jurisdiction  over  the  sub- 
ject-matter and  can  grant  the  relief  sought,  the  objec- 
tion to  the  jurisdiction  on  the  ground  that  there  is  an 
adequate  remedy  at  law  should  be  taken  ]n-om]itly  and 
before  entering  upon  a  defense  to  the  merits  (Kilbourn 
V.  Sunderland,  130  U.  S.  505 ;  Brown  v.  Lake  Superior 
Iron  Co.,  lo-t  U.  S.  530).  In  Illinois  such  objection 
must  be  raised  by  demurrer,  plea  or  answer  or  it  will 
be  waived  (Kaufman  v.  Wiener,  169  111.  596). 

If  the  case  contains  some  one  or  more  of  the  recog- 
nized grounds  of  jurisdiction  in  equity,  the  remedy 
at  law,  if  one  exists,  to  exclude  jurisdiction  in  equity, 
must  be  as  practical,  as  complete,  as  prompt,  and  as 
efficient,  not  only  with  respect  to  the  immediate  action, 
but  in  obviating  the  need  of  further  litigation  concern- 
ing the  subject-matter  of  the  controversy,  and  in  pre- 
venting irreparable  or  continued  injury  and  damage. 
(Boyce's  Executors  v.  Grundy,  3  Peters,  210;  Ins.  Co. 
V.  Bailev,  3  Peters,  210;  Kilbourn  v.  Sunderland,  130 
U.  S.  505). 

In  Illinois,  if  a  party  commencing  any  civil  suit  or 
proceeding  has  misconceived  his  remedy,  he  may  be 
permitted,  in  the  discretion  of  the  court,  and  on  pay- 
ment of  all  accrued  costs  and  such  clerk's  advance  fees 
as  are  required  for  the  commencement  of  the  suit  in 
the  proper  form,  by  proper  amendments,  in  the  same 
proceeding,  to  transfer  the  suit,  if  at  law,  to  chancery, 
and  if  in  chancery,  to  the  law  docket  of  the  court ;  and 
when  so  transferred,  the  suit  shall  proceed  as  though 
originally  commenced  on  such  side  of  the  court  (Sec. 
40  111.  Stat.  Practice). 

Equity  jurisdiction  may  be  auxiliary  to,  concurrent 
with,  or  exclusive  of  the  jurisdiction  of  courts  of  law: 
auxiliary,  as,  for  instance,  a  bill  of  discovery  to  aid  a 
proceeding  at  law;  concurrent,  as,  for  instance,  a  suit 
at  law  for  damages  for  a  breach  of  contract,  or  a  suit 
in  Equity  for  specific  performance  of  the  contract ;  ex- 
clusive, as,  for  instance,  a  bill  seeking  the  reformation 


12 

of  a  written  instrument,  a  proceeding  not  permitted 
at  common  law. 

If  a  court  of  equity  has  once  properly  obtained 
jurisdiction  upon  some  Equity  principle,  it  will  retain 
such  jurisdiction  even  to  the  extent  of  granting  relief 
which  a  court  of  law  also  could  adequately  bestow 
(Williamson  v.  Monroe,  101  Fed.  322). 

If  every  averment  which  would  authorize  a  court 
of  equity  to  take  jurisdiction  is  found  by  the  court  to 
be  not  proved,  the  fact  that  the  proof  shows  complain- 
ant has  a  legal  demand  against  defendant  for  money 
loaned  does  not  justify  the  court  in  retaining  jurisdic- 
tion and  entering  a  money  decree,  no  reason  appear- 
ing why  the  remedy  at  law  is  not  complete  and  ade- 
quate (Brauer  v.  Laughlin,  235  111.  265).  However, 
the  Illinois  Statute  on  Mechanic's  Liens  provides  that 
if  a  lien  claim  fails,  complainant  may,  in  a  proper  case, 
obtain  a  judgment  for  money  as  at  law.  Mechanic's 
lien  claims  are  adjudicated  in  Equity  C'Ourts  not  be- 
cause such  claims  present  issues  recognized  by  courts 
of  Equity,  but  only  because  the  statute  imposes  such 
special  remedy  upon  these  courts,  instead  of  common 
law  courts. 

In  most  of  the  courts  of  the  United  States  the  ad- 
ministration of  equity  jurisdiction  is  distinct  and  sep- 
arate from  the  administration  of  common-law  juris- 
diction; and  therefore  Equity  pleading  is  a  distinct 
system  of  pleading.  It  is  necessary  for  the  student 
to  understand  the  nature  of  a  court  of  equity,  also 
its  principal  maxims,  and  also  the  chief  subjects  of 
equity  jurisprudence,  in  order  to  have  an  intelligent 
idea  of  the  Equity  system  of  pleading. 

It  may  be  said,  further,  that  the  courts  of  equity 
differ  from  those  of  common  law  as  follows :  At  com- 
mon law  the  defendant  can  be  brought  into  court  by 
an  original  writ  before  declaration  filed;  in  equity  he 
is  brought  in  by  a  subpoena  or  summons  after  the  bill 
is  filed.  At  common  law,  oral  evidence  is  offered  be- 
fore a  jury  in  open  court ;  in  Equity,  the  evidence  is  re- 
duced to  writing,  usually  in  the  form  of  depositions, 
taken  outside  of  court,  and  is  afterwards  delivered 


13 

in  court  and  read  to  the  court  at  the  hearing  of  the 
cause.  At  law,  the  decision  of  the  case  is  in  the  form 
of  a  judgment  for  the  plaintiff  or  defendant  in  dam- 
ages ;  in  Equity,  the  decision  is  in  the  form  of  a  decree, 
not  merely  in  damages,  but  so  framed  as  to  suit  all 
the  varied  necessities  of  each  case. 

The  chief  pleadings  in  an  Equity  case  are:  (1)  the 
bill  of  complaint;  (2)  the  demurrer,  plea  or  answer 
of  the  defendant;  and  (3)  the  replication  of  the  com- 
plainant. 

BILLS  IN  EQUITY. 

A  suit  in  Equity,  if  brought  by  a  private  person,  is 
begun  by  a  Bill  or  Petition.  If  brought  by  the  Attor- 
ney-General or  State's  Attorney  on  behalf  of  the  Gov- 
ernment or  people,  the  complaint  is  called  an  Informa- 
tion. 

As  against  limitation  statutes,  a  suit  in  Illinois  is 
not  considered  as  begun  until  process  or  summons  has 
been  issued  and  bona  fide  delivered  to  the  sheritf  for 
proper  service  (Collins  v.  Manville,  170  111.  614).  And 
a  suit  in  Illinois  is  not  considered  as  begun,  so  as  to  be 
notice  to  the  world  by  lis  pendens,  until  bill  is  filed  and 
summons  served,  or  appearance  entered  (Allison  v. 
Drake,  145  111.500). 

Bills  are:  (1)  Original,  which  begin  a  suit;  and  (2) 
Not  Original,  which  are  filed  in  a  suit  already  begun. 

Original  Bills  are  (1)  Bills  of  Complaint,  wherein 
complainant  seeks  a  decree  determining  his  claims 
against  the  defendant,  such  as  Bills  for  Specific  Per- 
formance, for  Foreclosure  of  Mortgages,  for  Breach 
of  Trust,  etc.;  (2)  Bills  of  Interpleader,  wherein  com- 
plainant seeks  a  decree  determining  not  his  own  claims 
but  those  of  rival  claimants  to  property  in  his  hands, 
that  he  may  safely  turn  over  the  property  to  the 
rightful  owner;  and  (3)  Bills  of  Certiorari  (now  obso- 
lete as  a  method  of  appeal),  formerly  chiefly  used  to 
transfer  a  case  from  an  inferior  to  a  higher  court,  in 
modern  practice  accomplished  by  statutory  appeals 
and  writs  of  error;  (4)  Bills  of  Discovery  (now  almost 


14 

obsolete,  because  parties  to  a  suit  can  be  compelled  to 
testify),  asking  defendant  to  disclose  facts  in  his 
knowledge,  or  for  writings  in  defendant's  control;  (5) 
Bills  to  Perpetuate  Testimony,  or  Bills  to  Examine 
Witnesses  de  bene  esse,  for  the  purpose  of  preserving 
evidence  against  loss  through  old  age  of  witnesses, 
illness,  or  intended  absence.  The  first  three  bills  are 
known  as  bills  praying  for  relief;  the  last  two  are 
known  as  bills  not  praying  for  relief. 

Bills  not  Original  are:  (1)  Supplemental  Bills,  set- 
ting forth  facts  occurring  after  bill  filed  and  correcting 
bill  to  agree  with  such  facts,  or  to  introduce  new  party 
made  necessary  since  bill  filed;  (2)  Cross-bills,  filed 
by  defendant  against  complainant  or  co-defendant  to 
avoid  mere  dismissal  of  bill  and  to  get  affirmative  re- 
lief in  same  suit  against  complainant  or  co-defendant; 
(3)  Bill  to  Impeach  a  Decree  for  Fraud;  (4)  Bill 
to  Suspend  a  Decree  under  special  circumstances  or 
because  of  facts  discovered  after  hearing  of  cause 
and  after  decree;  (5)  Bill  to  Carry  a  Decree  into 
Effect,  when,  from  neglect  or  other  cause,  it  is  im- 
possible without  a  further  order  of  court;  (6)  Bill  of 
Eevivor,  to  revive  suit  which  would  abate  by  death 
of  party  or  other  cause;  (7)  Bill  of  Eeview,  to  review, 
alter  or  reverse  the  decree  for  (a)  error  of  law,  or 
(b)  for  new  matter  discovered  after  decree. 


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ORIGINAL  BILLS. 


An  Original  Bill  usually  lias  nine  parts : 

(1)  The  Address  to  the  Court  by  correct  title  of 

court ;  example,  ' '  To  the  Judges  of  the Court 

of ,  in  Chancery  sitting:"     (U.  S.  Eq.  inile 

20.) 

(2)  The  Introductory  part,  introducing  the  names, 
citizenship  and  abode  of  the  parties,  as:     "A.  B.,  a 

citizen  of  and  residing  in  the  County  of ,  in  the 

State  of ,  brings  this  Bill  of  Complaint 

against  C.  D.,  a  citizen  of  and  residing  in  the  County  of 

.in  the  State  of ,  and  complains  and 

avers  as  follows:"    (U.  S.  Eq.  Rule  20;  1  Smith  82;  1 
Barb.  35.) 

The  names  of  parties  do  not  occur  in  the  caption  or 
title  to  an  Original  Bill.  (Spencer  v.  Goodlett,  104 
Tenn.  648.) 

(3)  The  Stating  Part:  Statements,  allegations, 
averments  of  all  principal  facts  showing  a  right  recog- 
nized by  equity  courts  in  a  clearly  described  subject- 
matter,  and  showing  such  right  to  be  possessed  by  com- 
plainant and  without  being  barred  by  laches,  statutes 
of  limitations,  or  statutes  of  frauds;  also  statements 
of  all  principal  facts  showing  a  violation  or  threatened 
violation  of  that  right  and  naming  the  defendants  con- 
cerned in  such  violation;  also  statements  of  facts  show- 
ing the  names  of  all  other  persons  as  defendants  having 
or  claiming  an  interest  in  the  subject-matter  of  the  suit, 
and  statements  showing  the  citizenship  and  residence 
by  state  and  county  of  all  parties;  also  statements  of 
facts  showing  that  substantial  injury  to  complainant, 
his  family,  or  property,  and  growing  out  of  the  sub- 
ject-matter of  the  suit,  has  resulted  or  will  result  be- 
cause of  such  violation;  also  statements  of  such  other 
facts  as  may  be  necessary  to  justify  and  explain  each 
particular  relief  prayed  for,  as  for  instance,  complain- 
ant's statement  of  what  he  has  done,  or  offers  to  do, 
in  the  way  of  equity  on  his  part. 

(4)  The    Confederating    part,    an    averment    that 


17 

defendants  named  confederated  with  other  persons, 
unknown,  and  asking  leave  to  join  the  latter  when  dis- 
covered. This  part  is  obsolete,  because  now  new  par- 
ties can  be  added  by  amendment  (Supervisors,  etc., 
V.  Miss.  E.  E.  Co.,  21  111.  367;  also,  U.  S.  Eq.  rule  21). 

(5)  The  Charging-  part,  statements  anticipating 
the  defenses  expected  and  meeting  them  with  counter 
charges.  It  is  in  effect  a  special  replication  in  antici- 
pation of  the  answer  expected  (Supervisors  v.  Miss. 
E.E.,  21  111.368).  Example:  Defendant  will  pretend 
to  have  a  written  release  of  all  claims;  but  plaintiff 
avers  such  pretended  release  was  obtained  by  the  fraud- 
ulent acts  of  said  defendant,  as  follows,  etc.  The  charg- 
ing part  is  not  necessary  to  a  bill,  except  for  the  pur- 
pose of  avoiding  later  amending  the  original  bill,  when 
the  ]3leader  knows  matter  confessing  and  avoiding  the 
bill  may  be  expected  in  the  answer.  If  the  stating  part 
of  the  bill  has  not  covered  the  anticipated  defense,  it 
may  be  well  to  do  so  in  the  charging  part  of  the  bill 
(Supervisors,  etc.,  v.  Miss.  E.  E.  Co.,  ante.  U.  S.  Eq. 
rule  21  authorizes  omission  of  charging  paragraph 
and  permits  statement  of  anticipated  defenses  in  stat- 
ing part.) 

(6)  The  Jurisdiction  clause,  averring  that  com- 
plainant's case  is  within  the  jurisdiction  of  the  court, 
and  that  except  in  a  court  of  equity  he  has  no  remedy. 
This  clause  should  not  be  used,  and  never  was  neces- 
sary. If  the  stating  part  of  the  bill  does  not  show  a 
proper  case  for  Equity,  this  clause  will  not  help,  and 
its  omission  does  no  harm  (Botsford  v.  Beers,  11 
Conn.  369,  373;  also,  U.  S.  Eq.  rule  21). 

(7)  Interrogatory  or  Discovery  Part :  A  general  in- 
terrogation or  prayer  that  defendants  answer  each 
matter  stated  in  the  bill  as  fully  as  if  specially  interro- 
gated thereon,  not  only  according  to  positive  knowl- 
edge, but  upon  their  best  recollection,  information  and 
belief ;  to  which  general  prayer  may  be  added  a  special 
prayer  to  answer  a  particular  list  of  interrogatories 
seriatim  set  forth  in  this  part  of  the  bill  (1  Dan.  486- 
8;  2  Dan.  238). 

The  general  prayer  for  answer  is  usually  called  the 


18 

*' general  interrogatory;"  and  tlie  list  of  questions, 
if  added,  is  called  the  "special  interrogatories." 
Whether  this  part  of  the  bill  consists  of  the  general  in- 
terrogatory alone  or  of  both  the  general  and  special, 
it  is  the  part  of  the  bill  tvhich  seeks  and  obtains  discov- 
ery from  the  defendants  to  disclose  the  full  truth  in 
their  answers  as  to  all  matters  stated  in  the  bill  (16 
Cyc.  223).  And  this  is  true  whether  the  bill  be  one  for 
discovery  only  or  a  bill  for  both  relief  and  discovery, 
as  is  more  usual  (Hopkins  v.  Medley,  97  111.  414).  The 
general  interrogatory  should  never  be  omitted,  though 
the  special  interrogatories  are  usually  omitted,  be- 
cause the  general  interrogatory,  unaided  by  statutes, 
requires  the  defendants  to  admit  or  deny  each  material 
allegation  of  fact  set  forth  in  the  bill,  with  attending 
circumstances,  or  to  deny  knowledge  or  information  or 
recollection  thereof,  and  declare  themselves  unable  to 
form  any  belief  concerning  them  (1  Dan.  487;  1  Barb. 
131).  The  peculiar  nature  of  an  answer  in  chancery, 
with  its  full  responsive  disclosures  as  well  as  matters 
of  defense,  so  diiTerent  from  an  answer  at  law,  which 
need  answer  nothing  so  long  as  it  sets  up  a  defense,  is 
due  to  the  peculiar  prayer  for  discovery  in  the  chan- 
cery bill  (Hopkins  v.  Medley,  97  111.  414;  1  Barb.  130). 

U.  S.  Equity  rules  39  and  40  excuse  full  answers 
where  special  interrogatories  are  omitted,  if  the  an- 
swer sets  forth  a  defense  in  bar  or  to  the  merits  such 
as  might  be  set  forth  in  a  plea. 

In  Illinois,  by  statute,  this  full  answer  must  be  made, 
whether  answer  under  oath  be  waived  or  not  (Sec.  23, 
111.  Stat.  Chan.;  Hair  v.  Dailey,  161  111.  379).  The  ef- 
fect of  waiving  answer  under  oath  merely  destroys  the 
character  of  the  answer  as  evidence,  making  it  mere 
pleading  (Bickerdike  v.  Allen,  157  111.  95) ;  but  the 
waiver  of  oath  does  not  lessen  the  duty  of  the  defend- 
ant to  answer  fully  if  he  elects  to  answer  instead  of 
filing  a  plea  or  demurrer. 

But  in  the  Federal  courts,  under  Equity  rule  39, 
defendant  is  permitted  to  file  and  set  up  in  his  an- 
swer all  matters  of  defense  in  bar  or  to  the  merits, 


19 

which  he  might  also  have  set  up  by  plea,  without  an- 
swering other  matters  except  such  as  he  must  have 
answered,  if  a  plea  filed  would  have  required  an  an- 
swer in  its  support.  Under  this  rule  it  would  seem 
that  a  plea  may  be  filed  under  the  name  of  an  answer. 

(8)  The  Prayer  for  Relief,  wherein  the  complain- 
ant prays  the  court  to  decree  and  order  the  defendant 
to  do  or  refrain  from  doing  certain  things  mentioned 
in  the  prayer,  and  wherein  complainant  also  prays  in 
general  "for  such  other  and  further  relief  as  may  be 
just  and  equitable."  If  the  specific  prayer  is  errone- 
ous, the  court  will,  under  the  general  prayer,  grant 
such  relief  as  may  be  proper  (Casstevens  v.  Casstev- 
ens,  227  111.  547).  In  the  absence  of  a  general  prayer, 
this  could  not  be  done  (Driver  v.  Fortner,  5  Port.  Ala. 
9;  Wilkin  v.  Wilkin,  1  Johns.  Ch.  111). 

If  an  injunction  is  sought,  complainant  should  spe- 
cifically pray  for  a  decree  enjoining  the  particular  acts 
complained  of  as  threatened  in  the  stating  part  of  the 
bill,  because  the  writ  of  injunction,  if  obtained,  should 
follow  the  prayer,  and  will  be  limited  by  it.  The  gen- 
eral prayer  for  relief  is  not  a  sufficient  basis  for  the 
writ  of  injunction  ordinarily  (Story  Eq.  PL,  Sec.  41) ; 
and  if  any  other  special  writ  or  order,  is  sought,  com- 
plainant should  pray  for  same  in  this  part  of  the  bill. 
A  writ  of  ne  exeat  being  an  emergency  writ  can  be 
obtained  by  petition.  No  prayer  is  necessary  (1  Smith, 
86).  Statutes  usually  permit  the  writ  of  ne  exeat  to 
issue  upon  special  petition,  whether  or  not  prayed  for 
in  the  prayer  of  the  original  bill. 

(9)  Prayer  for  Process,  asking  the  court  to  grant 
issuance  of  process  or  writ  of  summons,  commanding 
defendants  to  appear  and  answer  the  bill,  and  to  grant 
other  writs  desired. 

When  injunction  is  prayed  for,  the  prayer  for  pro- 
cess should  also  ask  the  court  to  grant  the  issuance  of 
a  writ  of  injunction  against  the  defendant.  But  see 
U.  S.  Eq.  rule  23).  The  prayer  for  process  must  name 
the  defendants  to  whom  the  writ  is  to  issue  (1  Smith 
85;  1  Barb.  38),  and  the  Prayer  for  the  Injunction 


20 

Writ  sliould  name  the  persons  against  wliom  the  writ 
of  injunction  is  to  issue. 

If  any  defendants  are  infants  or  otherwise  under 
guardianship,  the  fact  should  here  be  stated  or  recited, 
so  the  court  may  make  order  thereon  as  justice  may  re- 
quire upon  the  return  of  the  process  (U.  S.  Eq.  rule 
23). 

The  above  is  a  brief  summary  of  the  nine  parts  of 
a  bill.  The  Confederacy  Clause  should  be  omitted. 
The  Charging  Part  may  be  used  or  not,  as  advisable. 
The  Jurisdiction  Clause  should  be  omitted.  The  gen- 
eral interrogatory  part  is  used,  but  the  special  inter- 
rogatories are  used  only  when  desired. 

The  bill  should  always  be  signed  by  the  solicitor  for 
the  complainant.  When  injunction  is  prayed,  the  bill 
should  be  sworn  to  by  the  complainant.  Otherwise, 
unless  the  statute  requires  it,  no  oath  to  the  bill  is 
necessary  if  answer  under  oath  is  waived  (1  Barb.  44). 

STATING  PART  OF  THE  BILL,  CONTINUED. 

A  party  seeking  aid  of  a  court  of  equity  must  show 
all  the  facts  necessary  to  entitle  him  to  that  aid 
Campbell  v.  Powers,  139  111.  128;  Waugh  v.  Bobbins, 
33  111.  182).  The  right,  title  and  interest  of  the  com- 
plainant should  be  stated  with  accuracy  and  clearness, 
and  the  proof  in  the  case  must  correspond  with  the 
allegations  (Fitzpatrick  v.  Beatty,  6  111.  454).  The 
material  allegations  of  the  bill  must  be  clearly  and 
positively  averred  (Primmer  v.  Patten,  32  111.  528), 
and  in  a  traversable  form  (Stow  v.  Bussell,  36  111.  18), 
and  not  by  way  of  recital;  and  a  party  cannot  have 
relief  upon  a  case  not  stated  in  his  bill  (Page  v. 
Greeley,  75  111.  400;  Morton  v.  Smith,  86  111.  117; 
Angelo  V.  Angelo,  146  111.  629).  But  the  claims  of  the 
defendant  may  be  stated  in  general  terms  (Story's 
Eq.  PL,  Sec.  255).  Where  the  extent  and  character  of 
defendant's  rights  are  more  within  the  knowledge  of 
defendant,  it  is  sufficient  to  allege  generally  that  the 
defendant  has  or  claims  to  have  some  rights  in  the 


21 

subject-matter  of  the  suit,  leaving  him  to  disclose  in 
his  answer  the  nature  and  extent  of  such  rights  (Mor- 
gan v.  Smith,  11  111.  194). 

The  citizenship  and  residence  by  state  and  county  of 
complainants  and  defendants  should  be  distinctlj^ 
averred  because  it  is  usually  one  of  the  grounds  of  the 
court's  jurisdiction.  For  example:  section  3  of  the 
Illinois  Chancery  Act  requires  a  suit  to  be  begun  in  the 
county  in  which  one  or  more  of  the  defendants  reside 
and  in  this  state  a  complainant  in  a  suit  for  divorce 
must  have  resided  one  year  in  the  state.  The  jurisdic- 
tion of  the  federal  courts  often  depends  upon  the  di- 
verse citizenship  of  the  parties  (Turner  v.  Bank,  4 
Dall.  8). 

Here  in  the  stating  part  (IT.  S.  Eq.  rule  21)  as  well 
as  in  the  charging  part,  the  complainant  may  antici- 
pate a  defense  and  allege  any  matter  necessary  to  ex- 
plain or  avoid  it;  or,  omitting  to  do  so,  on  the  coming 
in  of  the  answer  with  new  matter,  complainant  may 
meet  this  new  matter  by  an  amendment  to  the  bill 
(White  V.  Morrison,  11  111.  361;  Harding  v.  Durand, 
138  111.  515). 

In  narrating  the  facts,  only  the  main  or  ultimate 
facts  need  be  alleged,  without  stating  the  circum- 
stances or  evidence  of  such  main  facts  (Story's  Eq. 
PL,  Sec.  28). 

Every  case  at  law  or  in  equity  involves:  (1)  deter- 
mining and  declaring  the  main  facts,  findings  of  fact; 
(2)  determining  and  declaring  the  legal  meanings,  ef- 
fects or  consequences  of  the  facts  (that  is,  determin- 
ing the  rights  and  duties  consequent  upon  the  facts, 
also  spoken  of  as  "applying  the  law  to  the  facts"), 
findings  or  conclusions  of  law  upon  the  facts;  (3)  com- 
manding the  enforcement  of  the  legal  consequences  of 
the  facts,  the  mandate  of  the  court  enforcing  the  law 
upon  the  facts. 

A  careful  lawyer  will  first  possess  himself  of  and 
keep  in  hand  the  clear  evidence  of  all  necessary  facts ; 
he  will  then  clearly  plead  the  main  facts  which  make 
his  case;  he  will  then  clearly  prove  the  pleaded  main 
facts  by  his  evidence ;  he  will  then  present  to  the  judge 


2^ 

a  prepared  decree  clearly  finding  those  main  facts  as 
pleaded,  clearly  finding  the  law  (or  rights  and  duties 
involved  in  those  facts),  and  clearly  ordering  the  par- 
ticular acts  or  conduct  necessary  to  enforce  such  rights 
and  duties.  The  careful  lawyer  will  be  sure  he  has  the 
facts ;  he  will  be  sure  to  plead  them ;  he  will  be  sure  to 
prove  them;  he  will  be  sure  his  decree  finds  them  and 
enforces  their  legal  consequences.  His  bill  or  defense 
must  check  with  each  necessary  fact;  the  proof  must 
check  with  each  allegation  of  fact  in  his  pleading;  the 
decree  must  check  with  the  allegations  and  proofs. 
These  requirements  are  fundamental. 

In  the  opinion  of  the  writer,  a  lawyer  should  write 
his  decree  before  he  draws  his  bill.  A  properly  drafted 
decree  contains  the  whole  case  from  beginning  to  end. 
After  writing  a  decree  finding  the  facts,  finding  the 
rights  and  duties  involved  in  those  facts,  and  ordering 
the  acts  to  be  done  which  enforce  those  rights,  a  lawyer 
will  thoroughly  understand  his  case ;  otherwise,  he  will 
not  see  his  whole  case,  and  mistakes  may  occur.  The 
decree  may  as  well  be  written  first  as  last,  and  noth- 
ing, in  the  experience  of  the  writer,  prevents  more  mis- 
takes or  better  clears  the  way  than  writing  a  decree 
before  the  bill.  The  decree  certainly  should  be  drafted 
before  entering  upon  the  proofs,  because  its  comple- 
tion usually  brings  to  light  the  need  of  additional  or 
amended  allegations  with  which  proofs  must  corre- 
spond, and  thus  mistakes  or  omissions  in  the  proof  are 
avoided. 

In  pleading,  one  should  state  the  main  or  ultimate 
facts  constituting  the  complaint  or  defense,  instead  of 
evidentiary  facts.  (Larvis  v.  Wis.  Cent.  54  111.  App. 
636).  He  should  leave  legal  conclusions  or  findings 
of  law  for  the  court  to  draw,  and  never  plead  them 
except  to  add  to  the  clearness  of  facts  stated  and  war- 
ranting the  conclusion,  especially  if  a  court  might 
otherwise  miss  the  legal  etfects  of  facts  stated.  Exam- 
ple: "Said  defendant  obtained  said  deed  by  fraudulent 
representations  as  follows :"  (here  state  facts  of  fraud). 
In  spite  of  the  current  of  decisions  against  pleading 
conclusions  of  law,  the  writer  thinks  they  are  frequently 


23 

used  and  are  often  necessary  for  clear  pleading ;  and  if 
they  are  accompanied  by  the  facts  which  warrant  them, 
they  entail  no  harm  and  at  the  worst  must  be  treated 
as  surplusage.  Courts  even  encourage  pleading  the 
legal  effect  of  instruments  rather  than  pleading  them 
in  h(Ec  verba. 

All  matters  of  inference  or  argument  are  imper- 
tinent and  will  be  expunged,  usually  with  costs 
(Sheldon  v.  Eobbins,  2  Root  190). 

"Whatever  is  intended  to  be  proved  should  be  alleged, 
otherwise  evidence  cannot  be  received  of  the  facts 
(Crockett  v.  Lee,  7  Wheat.  522;  Story's  Eq.  PI.,  Sec. 
28). 

Complainant  must  allege  in  his  bill  that  he  has  done 
or  offered  to  do  or  is  ready  to  perform  everything 
necessary  to  entitle  him  to  the  relief  he  seeks,  or  a 
sufficient  excuse  for  its  non-performance  (DeWolf  v. 
Pratt,  42  111.  198).  It  is  a  maxim  of  equity  that  he 
who  seeks  equity  must  do  equity  (Winslow  v.  Noble, 
101  111.  194). 

"When  a  bill  is  filed  long  after  the  cause  of  action  ac- 
crued the  facts  relied  upon  as  excusing  the  delay  must 
be  set  fortli  in  the  bill;  otherwise  the  bill  will  impute 
laches;  and  may  be  attacked  by  demurrer  or  plea, 
or  the  court  of  its  own  motion  mav  refuse  to  consider 
the  case.     (Sullivan  v.  Railroad,  94  U.  S.  806). 

A  bill  may  be  framed  with  a  double  aspect,  so  that 
if  one  ground  fail  the  complainant  may  rely  upon  the 
other,  which  mav  be  inconsistent  with  the  former 
(Varick  v.  Smith,  5  Paige  Ch.  Rep.  137). 

Where  relief  is  sought  on  the  ground  of  fraud  or 
usury,  general  charges  should  be  followed  by  allega- 
tions in  which  the  circumstances  and  facts  upon  which 
the  charge  is  founded  are  fully  and  specifically  stated 
(Newell  V.  Bureau  County,  37  111.  253 ;  Smith  v.  Britten- 
ham,  98  111.  188;  Goodwin  v.  Bishop,  145  111.  421;  Brew- 
ing Company  v.  Wolford,  179  111.  252).  Fraud  cannot 
be  alleged  by  mere  statement  of  conclusions,  as,  for 
instance,  a  statement  that  the  defendant  obtained  cer- 
tain property  by  "fraud  and  misrepresentation." 
There  must  be  a  distinct  averment  of  the  facts  and 


24 

circumstances  constituting  the  fraud,  so  tliat  the  court, 
if  there  was  no  appearance,  could  from  the  allegations 
and  the  proof  supporting  them  find  that  a  fraud  had 
been  committed,  and  so  that  the  defendant  may  be  able 
to  answer  and  explain  such  facts  and  defend  the  charge 
(Toles  V.  Johnson,  72  111.  App.  182). 

If  an  allegation  be  capable  of  two  meanings,  the  one 
most  unfavorable  to  the  pleader  will  be  adopted  (Hal- 
ligan  V.  E.  R.  Company,  15  111.  558). 

If  a  bill  makes  an  instrument  a  part  thereof,  without 
annexing  a  copy  or  setting  forth  the  contents,  it  is 
bad  on  demurrer  (Martin  v.  McBryde,  3  Ired.  Ch. 
531).  Exhibits  forming  a  part  of  the  bill,  will  aid  de- 
fective statements  in  the  bill  (Benneson  v.  Savage,  130 
111.  352). 

The  practice  of  allowing  oyer  is  unknown  in  chan- 
cery (Hamilton  v.  Downer,  152  111.  651).  Oyer  means 
the  right  to  see,  or  hear  read,  some  document  in  court 
as  a  part  of  the  pleadings. 

The  bill  must  cover  the  whole  subject  in  dispute, 
so  as  not  to  expose  the  defendant  to  be  harassed  by 
another  suit  when  one  suit  may  suffice  (Purfry  v. 
Purfry,  1  Vern.  29;  1  Barbour's  Ch.  Pr.,  40). 

Bills  of  Interpleader :  Where  two  or  more  persons 
claim  the  same  property  in  different  titles,  whether 
legal  or  equitable,  from  another,  who  is  in  the  position 
of  an  innocent  stakeholder,  the  latter,  if  molested  by  a 
suit  actually  brought  or  threatened,  may  file  his  Bill  of 
Interpleader,  for  the  purpose  of  compelling  the  claim- 
ants to  litigate  their  rights  at  their  own  expense,  and 
thus  protect  himself  from  all  vexation  and  responsi- 
bility (McClintock  v.  Helberg,  168  111.  384). 

Such  bill  will  lie  only  where  the  same  thing,  debt 
or  duty,  is  claimed  by  both  or  all  of  the  defendants 
by  different  or  separate  interests  (Ryan  v.  Lamson, 
153  111.  520) ;  where  all  their  adverse  titles  or  claims 
are  derived  from  a  common  source,  and  where  the 
complainant  has  no  claim  or  interest  in  the  subject- 
matter  or  controversy.  It  will  not  lie  after  a  judgment 
at  law  on  the  claim  in  favor  of  either  or  both  of  the 
claimants  (Hathaway  v.  Foy,  40  Mo.  450). 


25 

It  is  not  necessary  for  the  holder  of  the  fund  to  file 
a  Bill  of  Interpleader  when  he  is  already  a  party  to  a 
suit  in  chancery  brought  by  one  claimant  against  the 
other  to  settle  the  right  to  the  fund.  In  such  case  the 
holder  of  the  fund  should  apply,  by  petition  in  that 
suit,  for  leave  to  pay  the  money  into  court,  to  abide 
the  event  of  the  litigation  between  the  other  parties 
(Badeau  v.  Rogers,  2  Paige  Ch.  209). 

MULTIFARIOUSNESS. 

The  bill  must  not  be  multifarious.  A  bill  is  multi- 
farious (1)  when  it  unites  several  distinct  and  incon- 
gruous matters  between  the  same  parties;  or  (2)  when 
it  unites  several  matters  in  all  of  which  the  complain- 
ants on  the  one  side  or  all  the  defendants  on  the  other 
do  not  have  a  joint  and  common  interest  (Metcalf  v. 
Cady,  8  Allan,  587;  Walker  v.  Powers,  104  U.  S.  245; 
Story's  Eq.  PL,  Sec.  271,  Gage  v.  Parker,  103  111.  528). 
A  bill  to  avoid  a  multiplicity  of  suits  is  an  exception  to 
this  general  rule.  The  rule  itself  is  no  hard  and  fast 
rule.  It  rests  somewhat  upon  the  discretion  of  the 
court,  depending  upon  considerations  of  convenience 
to  the  court,  avoidance  of  a  multiplicity  of  suits,  and 
avoidance  of  hardship  to  the  parties  (No.  Am.  Ins.  Co. 
V.Yates,  214  111.  272). 

The  objection  for  multifariousness  is  waived  by 
answering  and  submitting  to  trial  on  the  merits  (Bird 
V.  Bird,  218  111.  158). 

IMPERTINENCE   AND   SCANDAL. 

A  bill  must  not  contain  impertinent  or  scandalous 
matter.  Impertinent  matter  is  that  which  is  wholly  ir- 
relevant and  unnecessary,  and  thus  tends  to  make  the 
record  improperly  voluminous  and  expensive  (Woods 
V.  Morrell,  1  Johns.  Ch.,  103).  A  bill  is  scandalous 
when  it  introduces  irrelevant  matter  which  is  also 
libelous  or  defamatory  in  character.  It  must  be  ir- 
relevant to  be  scandalous.  It  may  often  be  necessary, 
in  cases  of  fraud,  to  make  allegations  very  injurious 


26 

to  the  character  of  the  parties  concerned:  "Nothing 
which  is  positively  relevant  to  the  merits  of  the  cause, 
however  harsh  or  gross  the  charge  may  be,  can  be 
correctly  treated  as  scandalous"  (Story's  Eq.  PL, 
Sec.  269).  The  objection  that  a  bill  is  impertinent 
or  scandalous  is  made  by  exceptions,  not  by  demurrer. 
These  exceptions  are  filed  to  the  bill,  and  state  what 
parts  are  objected  to  on  these  grounds  (Stirrat  v. 
Excelsior  Mfg.  Company,  44  Fed.  Rep.  142).  When 
such  objection  is  made,  the  court  refers  the  matter 
to  a  master  for  examination,  and  if  the  charge  is 
sustained  the  matter  is  ordered  to  be  stricken  out, 
and  the  plaintiff  will  be  required  to  pay  costs.  If 
the  scandal  is  gross  and  wanton,  the  counsel  who 
is  guilty  of  it  may  also  be  subject  to  the  discipline  of 
the  court  for  a  violation  of  his  duty  as  an  officer  of 
the  court  (Reichl  v.  McGrath,  L.  R.  14  App.  Cas.  665). 
Any  unnecessary  allegation  bearing  cruelly  upon  the 
moral  character  of  an  individual  is  scandalous  (Coffin 
V.  Cooper,  6  Ves.  514).  Neither  suitors  nor  solicitors 
should  be  allowed  to  manifest  their  personal  feelings 
upon  the  records  of  the  court  (McConnel  v.  Holobush, 
11  111.  61). 

BILLS  NOT  ORIGINAL. 

Supplemental  Bills:  A  Supplemental  Bill  is  one 
brought  by  the  plaintiff  in  the  original  suit  to  intro- 
duce some  material  fact  affecting  the  case  which  has 
occurred  since  the  beginning  of  the  suit;  or  to  intro- 
duce some  new  party  who  has  become  necessary  since 
the  beginning  of  the  suit  (Wilder  v.  Keeler,  3  Paige, 
164).  If  the  Original  Bill  shows  no  ground  for  relief, 
the  defect  cannot  be  cured  by  a  Supplemental  Bill  set- 
ting up  matters  that  have  arisen  since  the  commence- 
ment of  the  suit  (Hughes  v.  Carne,  135  111.  519). 

Matters  which  occurred  prior  to  the  filing  of  the  bill, 
and  not  stated  therein,  should  be  brought  into  the  suit 
by  amendment;  but  matters  arising  subsequent  to  the 
filing  of  the  Original  Bill  must  be  introduced  by  a  Sup- 
plemental Bill  (Burke  v.  Smith,  15  111.  158;  McDonald 


27 

V.  Asay,  139  HI.  123).  The  Supplemental  Bill  must  be 
germane  to  the  Original  Bill  (Miller  v.  Cook,  135  HI. 
190). 

Bills  of  Revivor:  A  Bill  of  Revivor  is  the  proper 
mode  of  reviving  a  suit  which  otherwise  would  abate 
by  the  death  of  the  plaintiff  or  the  defendant  (Bowie 
v.  Minter,  2  Ala.  406).  In  Illinois,  a  bill  to  revive  on 
account  of  death  is  not  necessary,  for  it  is  provided  by 
statute  that  representatives  of  deceased  parties  may 
be  made  parties  by  suggesting  the  death  upon  the  rec- 
ords of  the  court,  when  the  case  will  proceed  as  in 
other  cases  (Illinois  Statute  on  Abatement).  In  Illi- 
nois, therefore,  a  bill  to  revive  before  a  final  decree  is 
unnecessary. 

Bills  of  Review:  A  Bill  of  Review  is  in  the  nature  of 
a  writ  of  error,  and  its  object  is  to  procure  an  examina- 
tion or  modification  or  reversal  of  a  decree  rendered 
upon  a  former  bill.  It  lies  only  after  the  term  of 
court  at  which  the  final  decree  was  entered  has  ex- 
pired. Until  a  final  decree  has  been  passed,  a  court 
of  chancery  has  full  power  over  all  the  proceedings 
in  the  case,  and  can  alter  or  annul  any  decree,  and 
can,  on  mere  motion,  rehear  the  case,  if  it  thinks 
proper  so  to  do  (Pitman  v.  Thornton,  65  Me.  95). 
The  bill  must  be  brought  in  the  same  court  in  which 
the  final  decree  in  the  original  suit  was  passed  (Tansey 
V.  McDonnell,  142  Mass.  220).  Leave  of  court  must  be 
obtained  before  a  Bill  of  Review  can  be  filed.  It 
lies  for  error  apparent  on  the  record,  or  for  mate- 
rial evidence  not  known  in  time  for  its  use  at  the 
former  trial,  and  not  discoverable  by  reasonable  dili- 
gence at  that  time  (Egbert  v.  Gerding,  116  111.  216). 
It  is  proper  after  a  decree  is  enrolled. 

A  Bill  of  Review  for  error  apparent  on  the  face  of 
the  record  must  be  for  an  error  in  law  arising  out  of 
the  facts  admitted  by  the  pleadings  or  recited  in  the 
decree  itself,  as  settled,  declared  or  allowed  by  the 
court.  It  cannot  be  sustained  upon  the  ground  that 
the  court  has  decided  wrongfully  upon  a  question  of 
fact  (Fellers  v.  Rainey,  82  111.  114) ;  but  if  there  has 
been  an  erroneous  application  of  the  facts  found  by  a 


28 

decree,  the  court  may  review  or  reverse  the  decree  by 
a  Bill  of  Review  (Jackson  v.  Jackson,  144  111.  274). 
Errors  of  law  against  which  relief  can  be  had  by  a  Bill 
of  Review  must  be  such  as  arise  rather  from  obvious 
mistake  or  inadvertence  appearing  on  the  face  of  the 
decree,  or  at  least  of  record,  than  from  alleged  error 
in  the  deliberate  judgment  of  the  chancellor  on  a  de- 
batable question  of  law  or  equitable  right  (Caller  v. 
Shields,  2  Stewart  &  Port.  417).  It  cannot  be  brought 
upon  the  ground  that  the  former  decree  was  not  sup- 
ported by  the  evidence  (Whiting  v.  Bank,  13  Pet.  6), 
and  no  evidence  is  admissible  as  to  the  facts  established 
]iy  the  original  decree  (Judson  v.  Stephens,  75  111. 
255 ) .  The  error  must  appear  on  the  face  of  the  plead- 
ings and  decree,  for  the  evidence  in  the  case  at  large 
cannot  be  looked  into  to  ascertain  whether  the  court 
misunderstood  the  facts  (Bruschke  v.  Verein,  145  111. 
433) ;  that  is  the  proper  province  of  the  court  of 
appeal.  But,  taking  the  facts  to  be  as  they  are  stated 
to  be  on  the  face  of  the  decree,  it  must  be  shown  that 
the  court  has  erred  in  point  of  law. 

Upon  a  Bill  of  Review,  a  court  will  revise,  correct 
or  reverse  its  own  decree  for  an  erroneous  applica- 
tion of  law  to  the  facts  found,  whenever  a  court  of 
appeals  would  do  so  for  the  same  cause  (Moore  v. 
Bracken,  27  111.  23). 

A  Bill  of  Review  lies  for  newly  discovered  evidence 
material  to  the  issue,  if  such  evidence  was  not  known 
until  after  the  trial  of  the  cause  (Yates  v.  Monroe,  13 
111.  212).  Mere  cumulative  evidence  is  not  sufficient. 
Unless  discovered  after  the  decree  is  pronounced,  it 
is  not  ground  for  a  Bill  of  Review  (Watts  v.  Rice,  192 
111.  123). 

The  only  distinction  between  a  petition  for  a  rehear- 
ing in  chancery  and  a  Bill  of  Review  for  the  same 
cause  is  that  the  former  is  to  be  invoked  before  the  en- 
rollment of  the  decree  and  the  adjournment  of  the 
term,  while  the  latter  is  available  after  the  decree  and 
adjournment  (Elzas  v.  Elzas,  183  111.  132). 

Cross-bills:  A  Cross-bill  is  one  brought  by  a  de- 
fendant against  the  complainant  in  the  same  suit,  or 


29 

against  other  defendants,  or  against  both,  touching 
the  matters  in  question  in  the  Original  Bill,  for  the 
purpose  of  obtaining  affirmative  relief  (Lloyd  v.  Kirk- 
wood,  112  111.  329). 

Under  an  Original  Bill,  the  court  must  simply  grant 
or  deny  the  relief  asked  for  by  the  plaintiff.  It  can- 
not proceed,  after  denying  relief  to  the  plaintiff,  to 
give  any  specific  relief  to  the  defendant,  although  the 
justice  of  the  case  might  manifestly  require  it  (Howe 
V.  South  Park  Commissioners,  119  111.  101).  The  main 
purpose  of  a  Cross-bill  by  defendant  is  to  ask  for  such 
relief  as  the  case  may  show  him  to  be  entitled  to ;  and 
upon  such  a  bill  the  court  can  proceed  to  give  the 
proper  relief  (Shields  v.  Bush,  189  111.  534).  There  are 
some  exceptions :  It  is  unnecessary  to  file  a  Cross-bill 
where  (on  the  faihire  of  a  bill  for  specific  perform- 
ance) it  appears  that  earnest-money  has  been  paid  by 
the  defendant;  and  a  decree  for  the  repayment  of  the 
earnest-money  will  be  given  without  the  filing  of  a 
Cross-bill  (Adams  v.  Valentine,  33  Fed.  Rep.  1) ;  also,. 
upon  a  bill  for  an  accounting,  the  party  against  whom 
the  balance  is  found  will  be  decreed  to  pay  it  without 
a  Cross-bill  (Acme  Co.  v.  McLure,  41  111.  App.  397). 

A  Cross-bill  must  contain  matter  germane  to  the 
Original  Bill  and  must  not  contradict  allegations  in 
the  answer  filed  (Ballance  v.  Underhill,  3  Scammon, 
453). 

A  defendant,  to  take  advantage  of  a  defense  arising 
pendente  lite,  must  assert  it  in  the  form  of  a  cross-bill 
praying  a  dismissal  of  the  original;  this  procedure 
taking  the  place  of  a  plea  puis  darrein  continuance 
at  common  law  (Mills  v.  Larrance,  186  111.  635).  By 
strict  practice,  this  course  must  also  be  taken  where  the 
defense  affects  only  a  co-defendant  (Metropolis  Nat. 
Bank  v.  Sprague,  21  N.  J.  Eq.  530). 

Where  the  matter  of  a  cross-bill  is  equally  available 
in  the  answer,  by  way  of  defense  to  the  original  bill, 
a  cross-bill  is  unnecessary  (Wight  v.  Downing,  90  111. 
App.  1).  The  rule  is  that  where  all  the  objects  sought 
can  be  attained  by  answer,  a  cross-bill  will  not  be  per- 
mitted (Hook  v.  Richeson,  115  111.  431). 


30 

In  Illinois  lien  defendants  in  a  foreclosure  snit  need 
not  file  a  cross-bill  in  order  to  have  their  rights  de- 
termined. Such  rights  may  be  determined  upon  their 
answers  (Gouwens  v.  Gouwens,  222  111.  223,  78  N.  E. 
597). 

In  Illinois  in  foreclosure  suits,  defendants  claiming 
liens  against  the  premises  in  their  answers,  whether 
such  liens  are  junior  mortgage  liens,  judgment  liens, 
or  otherwise,  are  entitled  without  filing  a  cross-bill  to 
have  the  court  determine  the  existence  and  priority  of 
such  liens  and  to  order  the  premises  sold  for  complain- 
ant and  the  proceeds  of  sale  to  be  distributed  according 
to  the  priority  of  the  liens  (Gardner  v.  Colin,  191  111. 
p.  553).  But  if  a  junior  lienor  desires  relief  beyond 
sharing  in  the  surplus  proceeds  of  sale,  such  as  a  de- 
cree ordering  a  sale  if  his  debt  is  not  also  paid  as  well 
as  the  debt  of  complainant,  a  cross-bill  is  necessary 
(Campbell  v.  Benjamin,  69  111.  244). 

A¥here  the  matter  of  the  cross-bill  constitutes  a 
defense  and  at  the  same  time  entitles  defendant  to  re- 
lief beyond  the  dismissal  of  the  bill,  and  such  relief 
cannot  be  had  by  answer,  a  cross-bill  is  proper  (Pax- 
ton  v.  Stackhouse,  4  Kulp.  (Pa.)  403).  A  cross-bill 
may  be  permitted  to  insure  relief  to  defendant,  where 
he  would  be  deprived  thereof  if  plaintiff  should  fail  in 
his  proof  (Wilcox  v.  Allen,  36  Mich.  160). 

Defendants  to  cross-hill:  A  cross-bill  requires  the 
same  parties  defendant  as  would  an  original  bill  for 
the  same  purpose  (McGillis  v.  Hogan,  85  111.  App. 
194).  Whether  the  cross-bill  must  fail  if  all  necessary 
parties  to  it  are  not  already  parties  to  the  original 
suit,  or  whether  new  and  necessary  parties  may  be 
brought  in  on  the  cross-bill,  is  a  question  upon  which 
the  practice  is  not  uniform.  In  some  jurisdictions  it 
is  held  that  new  parties  cannot  be  introduced  by  a 
cross-bill  (Wright  v.  Frank,  61  Miss.  32;  Shields  v. 
Barrow,  17  Howard  130)  ;  in  others  the  practice  of 
bringing  in  new  parties  is  provided  for  by  statute 
(Scott  V.  Millikin,  60  111.  108).  Plaintiff  in 'the  orig- 
inal should  be  a  necessary  defendant  in  a  cross-bill,  al- 
though it  be  directed  mainly  against  a  co-defendant; 


31 

because  a  controversy  between  defendants  cannot  be 
made  the  ground  of  a  cross-bill  unless  its  settlement  is 
necessary  to  a  complete  decree  on  the  case  made  by  the 
bill  (Weaver  v.  Alter,  3  Woods  152). 

Foryn  of  Cross-bills:  A  cross-bill  must  have  all  the 
essential  parts  of  an  original  bill  (McCagg  v,  Heacock, 
42  111.  153).  It  must  be  so  framed  that  both  original 
and  cross  causes  may  be  heard  together,  and  a  single 
decree  entered  (McDougald  v.  Dougherty,  14  Ga.  674). 
Formerly  a  cross-bill,  in  addition  to  having  all  the 
parts  of  an  original  bill  for  the  same  purpose,  used  to 
state  the  original  bill  so  far  as  to  show  its  parties, 
scope  and  object,  and  what  proceedings  had  been  had 
thereon  (Mitford  Eq.  PL  75).  But  this  requirement 
was  due  to  the  fact  that  a  cross-bill  in  England  might 
be  filed  in  a  court  other  than  the  one  in  which  the  orig- 
inal suit  was  pending.  In  the  federal  courts,  a  cross- 
bill must  be  filed  in  the  same  court  as  the  original ;  and 
it  is  necessary  only  to  set  forth  so  much,  with  regard 
to  the  original  and  the  proceedings  thereon,  as  may  be 
necessary  to  disclose  the  right  sought  to  be  brought 
before  the  court  (Neal  v.  Foster,  34  Fed.  496). 

Defenses  to  Cross-bills.  A  defendant  to  both  orig- 
inal and  cross-bill  must  interpose  his  defense  sepa- 
rately to  each  (Crutcher  v.  Trabue,  5  Dana  (Ky.)  80). 
The  modes  and  grounds  of  defense  are  substantially 
the  same  as  to  an  original  bill  (Barker  v.  Belknap,  39 
Vt.  168). 

The  Illinois  statutes  contain  the  following  provis- 
ions respecting  cross-bills: 

Any  defendant  may,  after  filing  his  answer,  exhibit 
and  file  his  cross-bill  and  call  upon  the  complainant 
to  file  his  answer  thereto,  in  such  time  as  may  be  pre- 
scribed by  the  court.  It  shall  not  be  necessary  to  re- 
cite in  the  cross-bill  any  of  the  pleadings  or  proceed- 
ings in  the  case  in  which  it  is  filed ;  and  it  shall  not  be 
necessary  to  pray  process,  except  against  new  parties. 
The  complainant  shall  be  required  to  except,  plead, 
demur  or  answer  to  such  cross-bill  in  the  same  manner 
that  a  defendant  is  required  to  except,  plead,  demur  or 
answer  to  an  original  bill,  and  his  answer  shall  have 


32 

the  same  effect  as  a  defendant's  answer  to  a  bill.  If 
the  complainant  shall  fail  to  answer  such  cross-bill,  his 
bill  shall  be  dismissed  with  costs,  or  the  new  matter 
set  ont  in  the  defendant's  cross-bill  shall  be  taken  as 
confessed,  and  a  decree  entered  accordingly.  Where 
it  is  necessary  for  the  defendant  to  bring  a  new  party 
before  the  court,  he  shall  state  it  in  his  cross-bill,  and 
the  summons  shall  be  issued,  and  other  proceeedings 
had,  as  in  the  case  of  other  defendants.  The  com- 
plainant shall  not  be  compelled  to  file  his  answer  to 
any  cross-bill  until  the  defendants  shall  have  filed  a 
sufficient  answer  to  the  complainant's  bill.  No  com- 
plainant shall  be  allowed  to  dismiss  his  bill  after  a 
cross-bill  has  been  filed,  without  the  consent  of  the 
defendant  (111.  Stat.  Chan.  sec.  30-36). 

In  Illinois,  under  the  statute,  filing  a  cross-bill  does 
not  require  leave  of  court  (Quick  v.  Lament,  105  111. 
578). 


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34 


APPEARANCE  AND  TIME  TO  FILE  PLEADING. 

To  prevent  the  entry  of  a  default,  the  defendant 
must,  either  personally  or  by  his  solicitor,  enter  his 
appearance  on  or  before  the  day  to  which  the  process 
is  made  returnable,  provided  he  was  served  with  proc- 
ess in  due  time  before  that  day ;  otherwise,  the  appear- 
ance day  shall  be  the  next  rule  day  succeeding  the  day 
when  the  process  is  returnable.  (U.  S.  Eq.  Rules  17, 
18;  111.  Stat.  Chan.  sec.  16).  A  defendant  may  waive 
the  service  of  process,  or,  being  served,  may  waive  the 
time  allowed  him,  and  enter  his  appearance  either  per- 
sonally or  by  his  solicitor. 

In  the  United  States  chanceiy  courts,  unless  other- 
wise ordered  by  a  judge  of  the  court,  for  cause  shown, 
the  defendant,  to  prevent  a  default  being  entered,  must 
file  a  plea,  demurrer  or  answer  to  the  bill  on  the  rule 
day  next  succeeding  the  rule  day  upon  which  his  ap- 
pearance was  entered  (U.  S.  Eq.  Rules  18,  32). 

Filing  an  answer  is  an  appearance.  Appearance 
cures  all  defects  of  process  or  of  service  of  process 
(1  Barb.  78),  and  also  cures  defects  of  jurisdiction 
unless  the  appearance  is  expressly  limited  upon  the 
record  for  specified  purposes.  An  infant's  appearance 
is  entered  by  his  guardian  ad  litem. 

Section  44  of  the  Illinois  Practice  Act,  permits  the 
court,  upon  the  appearance  of  the  defendant,  to  allow 
such  time  to  plead  as  may  be  reasonable  or  necessary. 

Cook  County  Chancery  Rule  I,  provides  that  if  a  de- 
fendant, properly  summoned,  enters  his  appearance 
before  default  taken,  he  shall  thereby,  without  any 
order,  have  twenty  days  from  the  first  day  of  the  ap- 
pearance term,  within  which  to  except,  demur,  plead  or 
answer;  also  that  when  a  defendant  not  properl}^  sum- 
moned, enters  his  appearance,  he  must  give  complain- 
ant's solicitor  immediate  notice  of  the  fact,  and  file 
his  pleading  within  twenty  days  after  such  appearance. 


35 


DEFENSE  TO  BILLS. 

The  defenses  to  a  bill  may  be  (1)  by  a  Demurrer, 
(2)  b}^  a  Plea,  (3)  by  an  Answer,  or  (4)  by  a  Dis- 
claimer. 

Each  of  these  defenses  may  go  to  the  whole  bill  or 
to  only  a  part  of  it ;  so  that,  as  to  one  part,  the  defend- 
ant may  demur,  as  to  another  he  may  plead,  as  to  a 
third  he  may  answer,  and  as  to  a  fourth  he  may  dis- 
claim, according-  to  the  nature  of  the  case  (1  Barb. 
173).  In  most  cases,  however,  unless  t  he  bill  presents 
divisible  claims,  only  one  defensive  pleading  at  a  time 
is  filed. 

DEMURRER. 

A  demurrer  is  a  pleading  by  the  defendant  assert- 
ing that  the  plaintiff's  case,  taking  it  just  as  he  states 
it,  gives  him  no  right  to  any  relief  (Lincoln  v.  Pur  cell, 
2  Head,  143).  A  demurrer  is  based  upon  a  ground  of 
defense  apparent  from  statements  in  the  bill  or  upon 
the  omission  of  matters  which  should  appear  in  the  bill 
(1  Barb.  105). 

A  demurrer  grants  the  truth  of  every  fact  well 
pleaded  in  the  bill  (Gage  v.  Bailey,  115  111.  646).  It 
does  not  grant  any  matters  of  law  which  may  be  sug- 
gested in  the  bill  or  may  be  inferred  from  the  facts 
stated  in  the  bill  (Dillon  v.  Barnard,  21  Wall.  430), 
nor  any  fact  that  is  not  specifically  charged  (Stowe  v. 
Russell,  36  111.  18;  Trust  Co.  v.  R.  E.  Co.,  157  111.  641). 
In  hearing  a  demurrer,  the  argument  is  strictly  con- 
fined to  the  case  appearing  from  the  bill;  and  for 
the  purpose  of  argument  the  matters  of  fact  stated  in 
the  bill  are  deemed  to  be  true  (East  India  Co.  v.  Hinch- 
man,  1  Ves.  Jr.  289).  A  demurrer  cannot  invoke  in  its 
support  any  fact  whatever  which  is  not  contained  in 
the  bill  (Story's  Eq.  PI.,  Sec.  453,  Note  3),  excepting 
those  facts  of  which  the  court  takes  judicial  notice  (1 
Daniell's  Ch.  Pr.,  546,  and  Notes  to  6th  Am.  Ed.). 
When  the  demurrer  invokes  some  fact  not  apparent 
upon  the  face  of  the  bill,  it  is  called  a  speaking  de- 
murrer, and  will  be  overruled. 


36 

Demurrers  are  general  when  no  particular  defect  is 
pointed  out  and  there  is  only  the  general  statement 
that  there  is  no  equity  in  the  bill.  A  general  demurrer 
is  properly  overruled  if  the  bill  makes  a  case  in  equity 
(Langlois  v.  McGullom,  181  111.  195). 

Demurrers  are  special  when  a  particular  defect  in 
a  bill  is  pointed  out  .  If  a  demurrer  is  filed  because  of 
a  formal  defect  in  the  bill,  it  must  be  a  special  and  not 
a  general  demurrer  (McCloskey  v.  McCormick,  44  111. 
336).  A  special  demurrer  (followed  by  a  general  one) 
is  preferable  in  any  case.  It  sets  forth  on  the  record 
the  objections  intended  to  be  raised. 

Demurrer,  ore  teniis:  Where  the  demurrer  runs  to 
the  whole  bill,  and  not  merely  to  some  parts  of  the 
bill,  and  the  causes  of  demurrer  are  assigned  or  pointed 
out,  if  those  causes  are  overruled,  the  demurring  de- 
fendant will  be  allowed  to  assign  other  causes  of  de- 
murrer, ore  tenus;  that  is  to  say,  orally,  at  the  argu- 
ment (Story's  Eq.  PI.,  Sec.  464). 

Effect  of  sustainmg  a  demurrer:  A  demurrer  to  the 
merits  of  the  whole  bill,  if  sustained,  results  in  a 
decree  dismissing  the  bill  (1  John.  Ch.  Eep.  184) ;  but 
the  sustaining  of  a  demurrer  to  a  part  of  the  bill  or  of 
a  special  demurrer  on  matters  of  form,  or  where  the 
court  can  see  that  the  objections  to  the  hill  can  he 
ohviated  by  amendment,  will  not  result  in  a  dismissal 
of  the  bill,  but  the  court  will  grant  leave  to  amend  (1 
Daniell's  Ch.  Pr.  524).  If  no  leave  to  amend  is  asked, 
the  bill  will  be  dismissed  (McDowell  v.  Cochran,  11 
in.  31). 

Effect  of  overruling  demurrer:  If  a  demurrer  is 
overruled,  the  defendant  unless  he  abides  by  his  de- 
murrer, is  ordered  to  answer ;  and  if  he  does  not  do  so, 
the  bill  is  taken  as  confessed.  (Bruschke  v.  Verein, 
145  in.  433). 

A  party  who  files  a  plea  or  answer  after  his  de- 
murrer has  been  overruled,  thereby  waives  the  right  to 
assign  the  overruling  of  his  demurrer  as  error,  and 
thus  he  waives  the  demurrer,  unless  and  so  far  as  the 
bill  fails  to  set  forth  a  cause  of  action,  or  unless  the 


37 

ease  presents  jurisdictional  defects  (Cline  v.  Cline,  204 
Illinois,  130;  Bamngartner  v.  Bradt,  207  Illinois,  345). 

A  defendant  who  does  not  bring  his  demurrer  to  a 
hearing,  thereby  waives  it  (Long  v.  Fox,  100  111.  43). 

Affidavit  of  non-delay:  In  the  United  States  courts, 
the  defendant  must  certify,  in  the  form  of  an  affidavit, 
that  the  demurrer  is  not  made  for  the  purpose  of  delay 
(31st  Rule  of  Prac.  U.  S.). 

The  causes  for  demurrer  may  relate  to  the  follow- 
ing classes:  (1)  to  the  jurisdiction  of  the  court;  (2) 
to  the  character  or  number  of  the  parties;  (3)  to  the 
form  of  the  bill;  or  (4)  to  the  substance  of  the  bill. 

1.  A  demurrer  to  the  jurisdiction  is  to  the  effect 
that  it  is  apparent  from  the  bill  that  the  court  in  which 
the  suit  is  brought  has  no  jurisdiction  over  the  parties 
or  over  that  particular  case.  This  is  common  in  the 
courts  of  the  United  States,  which  have  jurisdiction 
only  over  specified  matters  and  persons;  and  even  in 
Illinois  parties  must  be  sued  in  the  county  where 
the  defendants  or  some  of  them  reside  (Hunger  v. 
Crowe,  219  111.  12).  The  proper  mode  of  raising  this 
point  is  by  demurrer;  but,  being  a  matter  of  jurisdic- 
tion, the  court  itself  will  take  notice  of  it,  and  will 
dismiss  the  bill  whenever  this  objection  becomes 
known  (Dodge  v.  Perkins,  4  Mason,  435).  (Caution: 
If  the  want  of  jurisdiction  is  not  apparent  from  the 
bill,  and  the  facts  stated  in  the  bill  show  jurisdiction, 
and  these  facts  are  not  true,  then  the  objection  to  the 
jurisdiction  must  be  raised  by  a  plea  averring  the  true 
facts.    Pleas  will  be  considered  later.) 

2.  Demurrer  on  account  of  character  or  icant  of  par- 
ties: If  the  complainant's  incapacity  to  sue  appears  in 
the  bill,  the  objection  should  be  raised  by  demurrer  (1 
Daniell's  Ch.  Pr.  287);  for  example:  if  infant  sues 
alone  and  not  by  "next  friend."  {Caution:  If  the  bill 
does  not  show  that  complainant  is  an  infant,  when  in 
truth  such  is  the  fact,  then  the  objection  must  be  raised 
by  plea  averring  the  fact  of  such  infancy).  The  omis- 
sion of  an  indispensable  party  as  plaintiff  or  defend- 
ant, if  the  omission  appears  on  the  face  of  the  bill,  can 


38 

be  raised  by  demurrer  (Lyman  v.  Bonney,  101  Mass. 
562). 

3.  Demurrer  to  the  form  of  the  bill:  The  principal 
objection  to  the  form  of  the  bill  is  that  it  is  multifa- 
rious. Other  grounds  of  formal  demurrer  are  that  the 
bill  was  not  signed  by  counsel,  or  it  omits  prayer  for 
process,  or  the  form  of  relief  prayed  for  is  entirely 
misconceived,  as  when  the  bill  is  framed  to  remove  a 
mortgage  as  a  cloud  on  a  title,  when  it  should  be 
framed  for  the  right  to  redeem  from  the  mortgage. 

4.  Demurrer  to  the  substance  of  the  hill:  Among 
grounds  of  demurrer  to  the  substance  of  the  bill  are 
the  following: 

(a)  That  the  bill  shows  uo  right  in  cor.iplainant  to 
sue  for  the  relief  (Oakey  v.  Bend,  3  Edw.  Ch.  482). 

(b)  That  the  bill  shows  that  complainant's  right  to 
sue  is  barred  by  the  statute  of  limitations  (Wisner  v. 
Barnet,  4  Wash.  631). 

(c)  That  the  bill  shows  that  complainant  has  lost 
his  right  to  sue  by  gross  laches  (Maxwell  v.  Kennedy, 
8  Howard,  210). 

(d)  That  the  bill  shows  that  complainant's  right  to 
sue  is  void  under  the  statute  of  frauds  (Chambers  v. 
Lecompte,  9  Mo.  566). 

(e)  That  the  bill  shows  no  cause  of  liability  against 
the  defendant  (Crane  v.  Deming,  7  Conn.  387). 

(f)  That  the  bill  shows  that  complainant  has  a  suf- 
ficient remedy  at  law  (Alioltz  v.  Goltra,  114  111.  241). 

(g)  That  the  bill  shows  there  is  another  suit  pend- 
ing for  the  same  matter. 

Whenever  any  other  ground  of  defense  is  apparent 
in  the  bill  itself,  either  from  matters  therein  alleged, 
or  from  a  failure  to  allege  some  fact  essential  to  sus- 
tain complainant's  right  to  relief,  or  where  there  are 
other  important  defects  apparent  in  the  frame  or  sub- 
stance of  the  bill,  a  demurrer  should  be  filed  to  save 
the  expense  of  answering  and  taking  evidence. 

If  the  defect  is  a  matter  of  form,  the  failure  to  de- 
mur may  be  deemed  to  be  a  waiver  of  the  objection 
(Nat.  Bank  v.  Carpenter,  101  U.  S.  567). 


39 


PLEAS. 


Pleas  raise  a  question  of  fact.  Demurrers  raise  a 
question  of  law.  A  demurrer  is  based  upon  a  de- 
fect apparent  from  the  bill;  a  plea  is  based  upon  an 
objection  not  apparent  in  the  bill  (1  Barb  114).  A 
plea  either  denies  a  single  fact  essential  to  complain- 
ant's case,  or  it  sets  up  a  new  fact  which  is  a  com- 
plete defense  to  the  case  or  to  that  part  of  the  bill 
to  which  it  is  raised.  If  a  plea  is  sustained,  it  saves 
the  case  to  the  defendant,  without  making  full  answer 
to  the  bill. 

Pleas  are  either  pure  pleas  or  negative  pleas;  a  pure 
plea  being  one  which  sets  up  in  the  plea  a  defensive 
fact  not  mentioned  in  the  bill,  namely,  a  plea  confess- 
ing and  avoiding;  as,  for  example,  a  plea  that  the 
plaintiff  has  given  a  release  of  the  claim  (Gardner  v. 
Watson,  18  Brad.  (111.)  386).  A  negative  plea  is  one 
which  negatives  or  denies  some  essential  fact  stated 
in  the  bill,  without  which  fact  the  bill  cannot  be  main- 
tained, thus  raising  a  complete  defense  to  the  whole  suit 
(Spangler  v.  Spangler,  19  Brad.  (111.)  28.)  Example: 
Wliere  a  bill  is  brought  by  one  as  heir,  a  plea  denying 
that  the  plaintiff  is  heir  is  a  negative  plea,  being  a  com- 
plete defense  to  the  bill ;  because,  if  the  plaintiff  is  not 
an  heir,  then  he  has  no  title  upon  which  to  support  his 
bill. 

Every  plea,  whether  pure  or  negative,  must  present 
but  one  issue  of  fact.  If  it  raises  two  or  more  issues, 
it  is  tainted  with  duplicity  and  is  fatally  defective 
(1  Barb.  116;  Story's  Eq.  PI.  654).  To  raise  two  or 
more  issues,  an  answer  and  not  a  plea  should  be  filed. 

With  three  exceptions,  there  must  be  no  answer  on 
the  point  covered  by  a  plea  on  file ;  for  the  answer  will 
be  taken  to  overrule  the  plea  when  both  cover  the 
same  parts  of  the  bill  (Grant  v.  Phoenix  Life  In.  Co., 
121  U.  S.  105).  The  three  exceptions  are  cases  in 
which  a  plea  must  be  accompanied  by  an  answer  sup- 
porting the  plea;  and  each  case  depends  on  the  frame 
of  the  bill : 

(1)     Those  cases  where  the  complainant  admits  the 


40 

existence  of  a  legal  defense,  but  charges  some  equitable 
circumstance  to  void  its  effect;  as,  for  example,  where 
the  plea  sets  up  a  release.  If  the  complainant  has  an- 
ticipated this  defense  in  his  bill  and  has  averred  that 
the  release  was  obtained  from  him  by  mistake,  and  sets 
out  the  facts  tending  to  prove  such  mistake,  and  asks 
for  discovery  as  to  them,  the  defendant,  if  he  puts  in  a 
plea  setting  up  the  release,  should  accompany  such  plea 
by  an  answer  denying  the  mistake  (Foster  v.  Foster,  51 
Vt.  216) ;  and  should  also  answer  fully  as  to  the  facts 
charged  in  the  bill  as  constituting  the  mistake  in  ob- 
taining the  release  (Chapin  v.  Coleman,  11  Pickering, 
331;  President  v.  Wilson,  9  111.  57). 

(2)  A\lierever  the  bill,  by  way  of  proving  the  com- 
plainant's title,  sets  forth  any  facts  or  circumstances  as 
being  within  the  defendant 's  knowledge,  a  plea  denying 
the  title  must  be  accompanied  by  an  answer  and  dis- 
covery as  to  such  facts  and  circumstances.  Example: 
Where  a  bill  proceeds  upon  the  title  of  the  complain- 
ant as  heir,  and  for  evidence  of  such  title  states  certain 
facts  as  being  within  the  defendant's  knowledge,  if  the 
defendant  puts  in  a  plea  denying  that  the  plaintiff  is 
the  heir,  it  must  be  accompanied  by  an  answer  as  to 
the  facts  alleged  to  be  within  his  knowledge,  and  which 
he  is  called  upon  to  discover. 

(3)  It  is  a  rule  that  where  a  bill  specifically  charges 
fraud  or  conspiracy,  a  plea  to  that  part  of  the  bill 
must  be  accompanied  by  an  answer  explicitly  denying 
the  fraud  or  conspiracy  and  the  facts  upon  which  the 
charge  is  founded  (U.  S.  Eq.  Rule  32). 

A  plea  generally  runs  to  the  whole  bill,  but  in  cases 
where  the  claim  of  the  plaintiff  is  divisible  in  its 
nature,  and  one  part  of  it  is  open  to  some  special  de- 
fense, which  does  not  apply  to  the  rest,  a  plea  may 
be  proper  for  such  part. 

Testing  the  legal  sufficiencg  of  a  plea:  A  plea  in 
equity  is  not  demurrable.  If  the  plaintiff  thinks  it 
is  not  good  law,  he  sets  the  case  down  for  hearing 
on  the  sufficiency  of  the  plea  (Lester  v.  Stevens,  29  111. 
155).  When  a  plea  is  thus  set  down  for  argument  as 
to  its  sufficiency  in  law  as  a  defense,  its  truth,  for 


41 

the  sake  of  argument,  is  deemed  to  be  admitted  (Gou- 
wens  V.  Goiiwens,  222  111.  223).  If  the  plea  is  adjudged 
good,  the  plaintiff  must  then  take  issue  upon  the  plea 
by  replying  to  it,  and  the  question  of  fact  raised  by 
the  plea  will  be  tried.  If  the  plea  is  adjudged  bad, 
the  defendant  will  be  allowed  to  make  answer  to  the  bill 
(Rhode  Island  v,  Mass.,  14  Peters,  210).  If  the  plaint- 
iff takes  issue  on  the  plea  by  filing  a  replication  to  it,  he 
admits  its  sufficiency  in  law  as  a  pleading  to  his  bill, 
and  the  only  question  open  is  whether  or  not  the  plea  is 
true  in  fact  (Bean  v.  Clark,  30  Fed.  Rep.  225). 

Effect  of  going  to  heciring  upon  Bill,  Plea  and  Rep- 
lication: If,  upon  the  hearing  of  the  issue  of  fact,  the 
finding  is  in  favor  of  the  defendant,  the  effect  thereof 
depends  upon  the  nature  of  the  issue  or  facts  determined 
upon  the  plea,  the  defendant  being  entitled  to  the  benefit 
thereof  only  so  far  as  in  law  and  equity  they  ought 
to  avail  him  ( Farley  v.  Kittson,  120  U.  S.  303 ;  Hughes 
V.  Blake,  6  Wheaton,  453;  Horn  v.  Dry  Dock  Co.,  150 
U.  S.  610;  Green  v.  Bogue,  158  U.  S.  478).  Usually  a 
final  decree  is  entered  upon  such  a  hearing  or  trial. 

The  allegations  of  fact  in  the  plea,  though  under 
oath,  are  not  evidence  in  favor  of  defendant.  The 
taking  of  the  evidence  upon  an  issue  of  fact  arising 
upon  a  plea,  and  reply  thereto,  is  governed  by  the 
rules  applicable  to  an  issue  arising  upon  an  answer 
and  replication. 

A  plea  is  waived  by  going  to  answer  and  hearing  on 
the  general  merits  (Miller  v.  Perks,  63  111.  App.  140). 

Where  a  plea  is  accompanied  by  an  answer,  it  must 
be  put  in  upon  oath.  Pleas  in  bar  of  matter  of  fact 
must  be  verified  (Dunn  v.  Keegin,  4  111.  292). 

Pleas  may  be  made  (1)  to  the  jurisdiction,  (2)  to 
the  person  of  either  party,  and  (3)  to  the  substance 
of  the  bill. 

(1)  Plea  to  the  jurisdiction:  When  the  lack  of 
jurisdiction  does  not  appear  on  the  face  of  the  bill, 
but  upon  some  fact  not  shown  in  the  bill,  a  plea  is 
proper.  If  this  defect  appeared  on  the  face  of  the  bill, 
it  would  be  demurrable.  Example:  If  a  citizen  of  Illi- 
nois avers  himself  to  be  a  citizen  of  New  York  and 


42 

brings  suit  in  the  Circuit  Court  of  the  United  States 
against  another  citizen  of  Illinois,  and  the  real  fact 
that  he  is  a  citizen  of  Illinois  does  not  show  on  the 
face  of  the  bill,  then  a  plea  setting  up  the  fact  that 
plaintiff  is  a  citizen  of  Illinois  will  be  necessary  to 
show  the  court  that  it  has  no  jurisdiction.  A  plea  to 
the  jurisdiction  must  state  the  residence  of  the  party 
in  question  (Lester  v.  Stevens,  29  111.  155). 

Pleas  to  the  jurisdiction  do  not  deny  the  right  of  the 
complainant  in  the  subject-matter  of  the  suit,  or  assert 
that  there  is  any  disability  on  the  part  of  either  the 
complainant  or  defendant,  but  assert  that  that  court 
is  not  the  proper  court  to  take  cognizance  of  the  cause 
(Story's  Eq.  PI.  Sec.  106). 

(2)  Plea  to  the  person:  Where  the  incapacity  of 
the  plaintiff  or  defendant  to  sue  or  be  sued  is  apparent 
on  the  face  of  the  bill,  the  proper  mode  of  objecting  is 
by  demurrer;  but  where  it  does  not  thus  appear,  the 
objection  must  be  presented  by  plea.  Example :  If  the 
bill  shows  the  complainant  to  be  an  administrator, 
when  in  fact  he  is  not  an  administrator,  a  plea  is  neces- 
sary to  set  up  this  fact.  Pleas  to  the  person  do  not 
dispute  the  jurisdiction  of  the  court,  nor  the  interest 
or  title  of  the  complainant,  but  assert  that  the  com- 
plainant is  incapacitated  to  sue,  or  that  the  defendant 
is  not  the  person  who  ought  to  be  sued  (Story's  Eq. 
PI.  Sec.  706).  If  want  of  indispensible  parties  is 
pleaded,  the  plea  must  show  who  are  such  parties 
(Robinson  v.  Smith,  3  Paige  222). 

(3)  Pleas  to  the  substance  of  the  hill: 

(a)  Plea  denying  the  plaintiff's  right  to  sue;  as,  for 
instance,  denying  that  he  is  the  heir  or  the  devisee  or  a 
purchaser. 

(b)  Plea  interposing  the  statute  of  frauds,  or  the 
statute  of  limitations,  or  the  laches  of  the  plaintiff. 
{Caution:  Where  these  objections  are  apparent  on 
the  face  of  the  bill,  they  must  be  raised  by  demurrer 
instead  of  by  plea,  unless,  of  course,  they  are  raised 
in  an  answer). 

(c)  Plea  of  payment  or  of  release,  or  plea  of  any 
other  defense  in  the  nature  of  confession  or  avoidance. 


43 

(d)  Plea  setting  up  that  defendant  is  a  bona  fide 
purchaser  for  value,  ivithout  notice  of  plaintiff's 
claim. 

The  main  purpose  of  the  plea  is  to  save  the  delay 
and  expense  of  going  into  the  case  at  large  when  some 
ground  exists  which,  when  it  is  brought  to  the  atten- 
tion of  the  court,  will  result  in  the  abatement  of  the 
pending  suit  or  bar  recovery  therein. 

ANSWER. 

The  third  mode  of  defense  to  a  bill  is  by  answer. 
If  the  defendant  does  not  demur  or  put  in  a  plea, 
or  if  his  demurrer  or  plea  has  been  overruled,  he 
must  answer,  unless  he  files  a  disclaimer.  An  answer 
answers  each  allegation  of  the  bill  or  the  part  of  the 
bill  covered  by  it,  either  admitting  the  allegation  or 
denying  it,  or  asserting  ignorance  of  and  disbelief  in 
the  truth  of  the  allegation,  and  therefore  denying  the 
allegation  and  calling  for  proof  thereof  (Hopkins  v. 
Medley,  97  111.  402).  The  answer  may  then  proceed 
further  to  aver  special  and  new  defensive  facts.  Thus 
an  answer  is  both  an  answer  and  a  defense  (1  Barb. 
130;  1  Dan.  487).  The  defense  may  consist  of  mere  de- 
nial of  material  allegations  in  the  bill,  or  it  may  consist 
of  new  facts  averred.  In  the  Federal  courts  however, 
defendant  may  omit  answering  fully,  and  may  set  up  in 
his  answer  any  defenses  in  bar  of  the  suit  or  to  the 
merits  which  might  be  set  up  by  a  plea  (U.  S.  Eq. 
rule  39). 

A  defendant  must  answer  not  only  as  to  facts  within 
his  knowledge,  but  as  to  those  ascertainable  from  books 
and  papers  in  his  control  (1  Barb.  135).  He  must  an- 
swer each  material  averment  directly,  unambiguously 
and  without  evasion,  denying  or  confessing  the  real 
substance  each  charge  clearly  (1  Barb.  136;  Tourville 
V.  Pier  son,  39  111.  446). 

The  23rd  Section  of  the  Illinois  Chancery  Act  re- 
quires that  '*  every  defendant  shall  answer  fully  all 
the  allegations  and  interrogatories  of  the  complaint, 
whether  an  answer  on  oath  is  waived  or  not,  except 


44 

such  as  are  not  required  to  be  answered  by  reason  of 
exceptions,  plea  or  demurrer  thereto  allowed"  (Hair 
V.  Dailey,  161  111.  379). 

Section  24  of  the  Chancery  Act  is  as  follows  :  ''When 
an  answer  shall  be  adjudged  insufficient,  the  defendant 
shall  file  a  further  answer,  within  such  time  as  the 
court  shall  direct,  and  on  failure  thereof  the  bill 
shall  be  taken  as  confessed.  If  such  further  answer 
shall  be  likewise  adjudged  insufficient,  the  defendant 
shall  file  a  supplemental  answer,  and  pay  all  costs 
attendant  thereon.  If  that  shall  be  adjudged  insuffi- 
cient, the  defendant  may  be  proceeded  against  for  a 
contempt,  and  the  like  proceedings  be  had  thereon  to 
enforce  the  order  of  the  court  as  in  other  cases  of 
contempt. ' ' 

Complainant  should  compel  a  full  answer,  by  filing 
exceptions  for  insufficiency,  making  defendant  either 
admit  or  deny  each  allegation,  to  save  unnecessary 
proof  on  part  of  complainant.  Affirmative  allegations, 
whether  in  a  hill  or  answer,  not  expressly  admitted  by 
the  opposite  pleading,  must  he  proved  (Cushman  v. 
Bonfield,  139  111.  219;  Hopkins  v.  Medley,  97  111.  402). 
An  answer  so  called  which  "neither  admits  nor  denies 
any  allegation  in  the  bill  but  calls  for  strict  proof  of 
each  allegation"  should  be  stricken  from  the  files  upon 
motion,  as  being  no  answer.  A  defendant  who  submits 
to  answer,  must  answer  fully  (1  Barb.  131). 

The  25th  Section  of  the  Chancery  Act  provides: 
"When  the  complainant  shall  require  a  discovery  re- 
specting matters  charged  in  the  bill,  the  discovery  shall 
not  be  deemed  conclusive;  but  if  a  replication  be  filed 
it  may  be  disproved  or  contradicted  like  any  other 
testimony,  according  to  the  practice  of  courts  of 
equity. ' ' 

Section  26  of  the  Chancery  Act  is  as  follows:  "On 
the  coming  in  of  any  answer,  the  com|:>lainant  may, 
by  leave  of  court,  exhibit  and  file  further  interrog- 
atories, to  be  answered  by  the  defendant  within  such 
time  as  shall  be  fixed  by  the  court." 

In  answering,  one  is  not  bound  to  answer  allega- 
tions which  are  purely  scandalous,  impertinent,  imma- 


45 

terial  or  irrelevant  (Davis  v.  Collier,  13  Geo.  R.  485), 
nor  anything  which  may  subject  him  to  a  penalty,  for- 
feiture, or  criminal  prosecution  (Adams  v.  Porter,  1 
Gushing  R.  171) ;  but  if  an  answering  defendant  relies 
on  this  objection,  he  should  specifically  so  state  as  a 
ground  for  refusing  the  discovery;  nor  is  defendant 
bound  to  answer  what  would  involve  a  breach  of  pro- 
fessional confidence  (Leggett  v.  Postley,  2  Paige  Ch. 
599). 

An  answering  defendant  must  set  forth  the  nature 
of  his  defense,  and  cannot  take  advantage  of  matters 
of  defense  shown  by  the  evidence,  if  they  are  not  set 
up  in  the  answer  (1  Barb.  137;  Jewett  v.  Sweet,  178 
111.  96).  If  he  wishes  to  introduce  proof  of  fraud  on 
the  part  of  the  complainant,  he  should  set  forth  the  cir- 
cumstances in  bis  answer  (Fitzpatrick  v.  Beatty,  1 
Gilm.  454),  as  no  presumption  exists  in  favor  of  an  an- 
swer any  more  than  in  favor  of  other  pleadings  (Mahr 
V.  O'Hara,  9  111.  -124).  If  his  defense  is  usury,  he  must 
allege  the  facts  particularly  instead  of  in  general  terms 
(Hosier  v.  Norton,  83  111.  519).  Allegations  in  an 
answer  and  proof  introduced  by  the  defendant  must 
agree  to  render  the  defense  available  (Dowden  v.  Wil- 
son, 108  111.  257). 

No  affirmative  relief  will  be  granted  to  a  defend- 
ant upon  an  answer.  To  get  relief,  he  must  file  his 
cross-bill  (Ashmore  v.  Hawkins,  145  111.  447).  How- 
ever, in  cases  where  the  maxim  that  he  who  seeks 
equity  must  do  equity  can  be  applied,  the  court  may, 
require  the  complainant  to  do  equity  as  a  condition 
to  relief  without  a  cross-bill  (King  v.  Cooper,  134  111. 
183;  and  see  '^Cross-bills,"  ante). 

In  Illinois,  in  foreclosure  suits,  defendants  claiming 
liens  against  the  premises  in  their  answers,  whether 
such  liens  are  junior  mortgage  liens,  or  judgment  liens, 
or  otherwise,  are  entitled  without  filing  a  cross-bill  to 
have  the  court  determine  the  existence  and  priority  of 
such  liens  and  to  order  the  premises  sold  upon  com- 
plainant's bill,  and  the  proceeds  of  sale  to  be  distrib- 
uted according  to  the  priority  of  the  liens  (Gardner  v. 
Cohn,  191  111.  p.  553).     But  if  a  junior  lienor  desires 


46 

relief  beyond  sliaring  in  the  surplus  proceeds  of  sale, 
such  as  a  decree  ordering  a  sale  also  for  the  junior 
lienor's  debt,  unless  it  is  paid  by  a  short  day  named,  a 
cross-bill  is  necessary  to  support  such  a  decree  (Camp- 
bell V.  Benjamin,  69  111.  244). 

The  defendant  may  in  the  answer  suggest  that  the 
bill  is  defective  for  want  of  parties,  and  by  proper 
averment  state  the  names  of  such  parties  and  their 
relation  to  the  case  (U.  S.  Eq.  Rule  52). 

If  the  defendant  does  not,  by  plea  or  answer,  object 
to  the  bill  as  defective  for  want  of  parties,  the  objec- 
tion will  not  be  allowed  to  prevail  at  the  hearing  of  the 
cause,  if  the  court  can  grant  a  decree  saving  the  rights 
of  the  absent  parties  (U.  S.  Eq.  Eule  53;  Bank  v. 
Seton,  1  Pet.  299;  Story  v.  Livingston,  13  Pet.  359; 
Keller  v.  Ashford,  133  U.  S.  610). 

If  the  bill  does  not  waive  an  answer  under  oath,  the 
answer  must  be  sworn  to  (U.  S.  Eq.  Rule  59). 

Section  20  of  the  Illinois  Chancery  Act  is  as  follows: 
"When  a  bill,  supplemental  bill,  bill  of  review,  bill  of 
revivor,  or  cross-bill  shall  be  filed  in  any  court  of 
chancery  other  than  for  discovery  only,  the  complain- 
ant may  waive  the  necessity  of  answer  being  made  on 
the  oath  of  the  defendant,  defendants,  or  either  of 
them;  in  such  case,  the  answer  may  be  made  without 
oath,  and  shall  have  no  other  or  greater  force  as  evi- 
dence than  the  bill." 

Section  21  of  the  Chancery  Act  provides:  "Every 
answer  shall  be  verified  by  an  oath  or  affirmation,  ex- 
cept as  provided  in  the  foregoing  section." 

Where  the  oath  is  not  waived,  the  answer  is  evidence 
only  so  far  as  it  is  responsive  to  the  bill,  and  not  as  to 
new  matters  alleged  in  avoidance  (Cummins  v.  Cum- 
mins, 15  111.  33). 

AVhere  the  answer  under  oath  is  required,  its  allega- 
tions can  be  overcome  only  by  the  evidence  of  two  wit- 
nesses, or  by  the  testimony  of  one  witness  and  cir- 
cumstances equal  to  that  of  another  witness  (Swift  v. 
School  Trustees,  14  111.  493) ;  or  the  complainant  may 
prove  it  false  by  evidence  equal  to  that  of  one  witness, 
and  in  addition  thereto  by  a  preponderance  of  evidence 


47 

sufficient  to  sustain  the  bill  if  the  oath  had  been  waived 
(Mey  V.  Gullman,  105  111.  272). 

When  an  oath  is  waived,  a  sworn  answer  will  have 
no  force  as  evidence,  and  will  be  considered  merely  as 
a  pleading  (Walwork  v.  Derby,  40  111.  527). 

Admissions  in  an  answer  are  conclusive,  and  evi- 
dence to  establish  the  facts  admitted  is  unnecessary 
(Gruenberg  v.  Smith,  58  111.  App.  281),  and  evidence 
to  disprove  them  will  not  be  considered  (Deimal  v. 
Brown,  136  111.  586) ;  and  this  whether  the  answer  be 
sworn  to  or  not  (Loughridge  v.  Insurance  Co.,  180  111. 
267).  If  an  admission  has  been  made  in  an  answer 
by  mistake,  the  court  will  relieve  the  party  making  it 
from  its  effect  (Maher  v.  Bull,  39  111.  531) ;  or  he  may 
file  a  supplemental  answer  correcting  the  mistake 
(Hughes  V.  Bloomer,  9  Paige  Ch.  E.  269). 

Testing  the  legal  sufficiency  of  an  answer:  Excep- 
tions to  the  answer  do  not  perform  the  office  of  a  de- 
murrer in  presenting  the  question  whether  the  facts 
averred  in  the  answer  constitute  a  defense  to  the  case 
made  in  the  bill;  and  as  it  is  not  permissible  to  file  a 
demurrer  to  an  answer,  if  it  is  desired  to  submit  the 
case  on  the  questions  of  law  arising  on  the  answer,  the 
only  method  of  testing  the  legal  sufficiency  of  an  an- 
siver  is  by  setting  down  the  case  for  hearing  on  hill 
and  anstver  (Banks  v.  Manchester,  128  U.  S.  244). 

In  such  case,  the  matters  well  pleaded  in  the  answer 
are  deemed  to  be  true  as  matters  of  fact,  whether 
answer  under  oath  is  waived  or  not  (Fletcher  Eq. 
Pr.  697;  Chambers  v.  Rowe,  36  111.  171,  ignored  by 
later  Illinois  decisions)  and  the  case  is  heard  upon 
the  allegations  of  fact  in  the  bill  contained,  and  not 
denied  in  the  answer,  taken  in  connection  with  the 
facts  averred  in  the  answer  (U.  S.  Eq.  Rule  41;  Leeds 
V.  Insurance  Co.,  2  Wheaton,  380;  Banks  v.  Man- 
chester, 128  U.  S.  244;  Derby  v.  Gage,  38  111.  27;  Roach 
V.  Glos,  181  111.  440;  16  Cyc.  382). 

In  such  case  no  allegation  made  in  the  bill,  although 
put  in  under  oath,  will  be  considered  as  evidence  if  de- 
nied; and  all  the  material  averments  contained  in  the 
answer,  although  not  put  in  under  oath,  are  held  to  be 


48 

true.  In  short,  the  complainant  must  rely  wholly  upon 
those  allegations  in  the  bill  which  the  defendant  by  his 
answer  has  admitted;  and  those  admissions  are  to  be 
taken  with  all  the  reservations  and  explanations  con- 
tained in  the  answer.  The  allegations  in  the  bill  ad- 
mitted by  the  answer  must  be  sufficient,  after  being 
emasculated  by  the  explanatory  matter  contained  in 
the  answer,  to  entitle  the  complainant  to  the  relief 
prayed  for,  or  he  will  fail  in  his  suit.  The  case  must 
be  clear  and  strong,  therefore,  which  will  justify  the 
complainant  in  going  to  a  hearing  on  the  bill  and 
answer  (Thomp.  141;  Contee  v.  Dawson,  2  Bland  264). 

Exceptions  to  answer:  An  answer  may  be  excepted 
to  for  insufficiency  or  for  scandal  or  impertinence.  Ex- 
ceptions for  insufficiency  will  be  allowed  where  mate- 
rial allegations  or  interrogatories  in  the  bill  are  not 
fully  answered  (Stafford  v.  Brown,  4  Paige  88;  Glos  v. 
Dietrich,  227  111.  581),  or  where  the  answer  sets  up 
questions  of  law  instead  of  facts  (Craig  v.  The  People, 
47  111.  487).  Exceptions  for  impertinence  or  scandal 
must  point  out  the  passage  objected  to.  Exceptions 
must  be  filed  before  filing  replication  (Coleman  v. 
Lynde,  4  Rand,  454).  Even  if  answer  under  oath  be 
waived,  answers  must  be  full  and  direct,  or  exceptions 
will  lie.  (Hair  v.  Dailey,  161  111.  379).  Exceptions 
for  insufficiency  or  failure  to  answer  certain  allega- 
tions of  the  bill  should  not  be  confused  with  testing 
the  legal  sufficiency  of  the  answer  as  a  defense. 

In  Illinois  the  denial  of  execution  or  assignment 
of  instruments  should  he  sworn  to  in  the  answer: 
(Sec.  33,  111.  Stat,  on  Practice).  ''No  person  shall  be 
permitted  to  deny,  on  trial,  the  execution  or  assignment 
of  any  instrument  in  writing,  whether  sealed  or  not, 
upon  which  any  action  may  have  been  brought,  or  which 
shall  be  pleaded  or  set  up  by  way  of  defense  or  set-off, 
or  which  is  admissible  under  the  pleadings  when  a  copy 
is  filed,  unless  the  person  so  denying  the  same  shall, 
if  defendant,  verify  his  plea  by  affidavit ;  and  if  plaint- 
iff shall  file  his  affidavit  denying  the  execution  or  as- 
signment of  such  instrument:  Provided,  if  the  party 
making  such  denial  be  not  the  party  alleged  to  have 


49 

executed  or  assigned  such  instrument,  the  denial  may 
be  made  on  the  information  and  belief  of  such  party" 
(Dean  v.  Ford,  180  111.  309). 

Waiving  answer:  Going  to  a  trial  or  hearing  with- 
out defaulting  defendant  for  want  of  answer,  or  with- 
out getting  a  rule  on  him  to  answer,  waives  the  answer 
(Jackson  v.  Sackett,  146  111.  646). 


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51 


DISCLAIMER. 


A  disclaimer  is  a  pleading  wherein  the  defendant 
states  that  he  has  no  interest  in  or  claim  to  the  subject- 
matter  of  the  demand  made  by  the  complainant.  He 
cannot  by  a  disclaimer  deprive  the  complainant  from 
getting  an  answer  from  him,  unless  it  is  clear  that 
he  ought  not  after  such  disclaimer  to  be  retained  as  a 
party  (Ellsworth  v.  Curtis,  10  Paige  Ch.  R.  105).  A 
disclaimer  must  be  full  and  explicit  and  be  accom- 
panied by  an  answer  denying  the  facts  deemed  neces- 
sary to  be  denied  (Worthington  v.  Lee,  2  Bland,  678). 

REPLICATION, 

A  replication  is  complainant's  response  to  defend- 
ant's answer.  It  reasserts  the  truth  and  sufficiency  of 
the  bill  and  denies  the  truth  and  sufficiency  of  the  an- 
swer (1  Barb.  249). 

An  answer  is  taken  as  true  unless  challenged  by 
replication  (Kingman  v.  Mowry,  182  111.  260).  The 
complainant,  not  having  replied,  can  offer  no  proof 
(16  Cyc.  383).  But  a  replication  is  waived  if  the  par- 
ties go  to  trial  and  proofs  without  it  (Jones  v.  Neely, 
72  111.  449).  Upon  an  amended  answer,  or  upon  a 
further  answer  to  an  amended  bill,  a  replication  should 
be  filed  (Erissman  v.  Erissman,  25  111.  136). 

If  the  complainant  neither  excepts  to  the  answer, 
nor  amends  his  bill  to  meet  new  facts  in  the  answer,  nor 
goes  to  a  hearing  upon  bill  and  answer,  he  files  his  rep- 
lication. This  puts  in  issue  all  the  facts  set  forth  in 
the  bill  and  not  admitted  in  the  answer.  By  statute  in 
Illinois,  the  replication  must  be  general,  but  with  a  like 
advantage  as  if  special.  Special  replications  admitting 
part  of  the  answer  and  denying  the  rest,  or  setting  up 
new  facts  in  reply  to  new  facts  in  the  answer — have 
become  obsolete.  Such  new  facts  are  now  set  up  by 
amendment  to  the  bill  (Wliite  v.  Morrison,  11  111.  361; 
U.  S.  Eq.  Rule  45),  unless  they  have  been  anticipated 
in  the  charging  part  or  stating  part  of  the  bill  (see, 
"charging  part"  of  bill,  ante). 


52 

The  Illinois  Chancery  Act  (sec.  28)  provides  that  the 
replication  shall  be  filed  "in  four  days  after  the  com- 
plainant or  his  attorney  shall  be  served  with  notice  of 
answer  filed."  If  he  does  not  so  file  the  replication 
after  such  notice,  the  cause  may  proceed  to  a  hearing  on 
bill  and  answer ;  in  which  case  the  answer  shall  be  taken 
as  true,  and  no  proofs  will  be  admitted  except  matters 
of  record  (111.  Chancery  Act,  sec.  29).  This  statute 
affirms  complainant's  right  as  above  set  forth  to  test 
the  legal  sufficiency  of  the  answer  by  omitting  to  file 
replication,  and  also  confers  upon  defendant  the  right 
to  force  complainant  to  go  to  a  hearing  upon  bill  and 
answer  for  failing  to  file  replication  within  the  four 
days.  However  if  defendants  treat  the  cause  as  if  at 
issue  and  join  in  taking  evidence  without  objection, 
they  will  thereby  waive  the  statute  (Marple  v.  Scott,  41 
111.  50). 

When  the  replication  has  been  filed,  the  pleadings 
are  closed,  the  cause  is  at  issue,  and  the  time  for  taking 
testimony  has  arrived. 

AMENDMENTS. 

Generally,  defects  in  the  form  of  the  bill,  in  the  non- 
joinder or  misjoinder  of  parties,  in  the  statement  of 
improper  matter,  or  in  the  omission  to  state  some  ma- 
terial or  pertinent  matter,  are  matters  to  be  remedied 
by  filing  an  amendment. 

Also  if,  to  meet  new  defensive  averments  of  fact 
in  the  answer,  it  becomes  necessary  to  reply  with 
matters  existing  when  the  bill  was  filed,  but  which  are 
not  contained  in  the  original  bill,  the  same  should  be 
set  forth  by  way  of  amendment.  In  the  old  chancery 
practice,  a  special  replication  was  used  for  this  purpose. 
But  special  replications  are  obsolete.  The  Illinois 
Statute,  Chancery,  section  28,  providing  that  "replica- 
tions shall  be  general,  with  the  like  advantage  as  if 
special,"  would  seem  to  make  it  unnecessary  to  meet 
new  matter  in  the  answer  by  an  amendment  to  the  bill. 
It  is  the  apparent  design  of  the  statute,  as  it  is  the  tend- 
ency of  modern  chancery  practice,  to  abolish  special 


53 

replications  and  lessen  the  number  of  pleadings ;  and  it 
would  seem  like  nullifying  the  statute  if  a  special 
replication  is  still  filed  in  the  guise  of  an  amendment 
to  the  bill.  But  such  amendments  are  permitted  and 
encouraged  under  Illinois  decisions  (McArtee  v.  Egart, 
13  111.  242;  Commissioners  v.  Dehor,  43  111.  App.  25; 
Harding  v.  Durand,  138  111.  515).  U.  S.  Equity  Rule 
45,  forbids  special  replications  but  permits  amendments 
made  necessary  by  the  answer. 

Leave  to  amend  the  bill  at  the  hearing  for  decree  is 
granted  in  furtherance  of  justice  if  the  proofs  show 
that  complainant  is  entitled  to  relief,  but  there  ap- 
pears need  of  the  addition  of  a  party,  or  of  more 
precise  averments  of  facts,  or  of  an  amendment  of  the 
j)rayer  (Neale  v.  Neale,  9  Wall.  1;  The  Tremolo  Patent, 
23  Wall.  518;  Hardin  v.  Boyd,  113  U.  S.  756;  Graffam 
v.  Burgess,  117  U.  S.  180 ;  Richmond  v.  Irons,  121  U.  S. 
27;  Chicago,  etc.,  Ry.  Co.  v.  Chicago  Nat.  Bank,  134 
U.  S.  276;  Gormley  v.  Bunyan,  138  U.  S.  623). 

The  answer  may  be  amended  as  a  matter  of  course 
in  a  matter  of  form,  or  as  to  filling  blanks,  correcting 
dates,  or  by  reference  to  a  document  or  other  small 
matter,  and  be  resworn  to,  at  any  time  before  a  repli- 
cation thereto  is  filed  or  the  cause  is  set  down  for  hear- 
ing upon  bill  and  answer  (U.  S.  Eq.  Rule  60). 

In  the  United  States  courts,  after  replication  is  filed 
or  the  cause  is  set  down  for  hearing  on  bill  and  answer, 
no  material  amendment  can  be  made,  except  upon  leave 
granted  by  the  court  or  judge,  after  due  notice  of  the 
application  therefor  given  to  the  complainant  (U.  S. 
Eq.  Rules  28,  29,  60). 

Amendme7it  by  supplemental  hill.  AVIien  suit  be- 
comes defective  by  the  happening  of  some  event  after 
the  filing  of  the  bill,  affecting  the  interest  of  the 
parties  or  the  subject-matter  of  the  suit,  or  if  through 
newly  discovered  evidence,  it  becomes  apparent  that 
some  new  party  should  be  brought  in  or  some  new 
fact  should  be  alleged,  the  defect  may  be  cured  by  fil- 
ing a  supplemental  bill.  In  the  United  States  Courts, 
application  for  leave  to  file  such  a  bill  should  be  made 
to  a  judge  upon  a  rule  day,  notice  being  given  to  the 


54 

adversary  party.  If  leave  is  granted  and  the  supple- 
mental bill  is  filed,  the  defendant  must  demur,  plead 
or  answer  to  the  same  on  the  next  succeeding  rule  day, 
unless  some  other  time  is  assigned  by  the  judge.  If 
new  parties  are  brought  in,  a  subpoena  must  be  issued 
and  served  on  them.     (U.  S.  Eq.  Eule  57.) 

The  statutes  of  the  different  States  are  liberal  in 
permitting  amendments  to  pleadings  and  are  somewhat 
similar  to  those  in  Illinois.  We  will  discuss  more  par- 
ticularly those  of  Illinois. 

(Sec.  39,  111.  Stat.  Practice) :  "At  any  time  before 
final  judgment  in  a  civil  suit,  amendments  may  be 
allowed  on  such  terms  as  are  just  and  reasonable, 
introducing  any  party  necessary  to  be  joined  as  plaint- 
iff or  defendant,  discontinuing  as  to  any  joint  plaint- 
iff or  joint  defendant,  changing  the  form  of  the  action, 
and  in  any  matter,  either  of  form  or  substance,  in  any 
process,  pleading  or  proceeding  which  may  enable  the 
plaintiff  to  sustain  the  action  for  the  claim  for  which 
it  was  intended  to  be  brought  or  the  defendant  to  make 
a  legal  defense.  The  adjudication  of  the  court  allow- 
ing an  amendment  shall  be  conclusive  evidence  of  the 
identity  of  the  action." 

Continuance  on  Amendme,nt  (Sec.  42,  111.  Stat.  Prac- 
tice) :  "No  amendment  shall  be  cause  for  continuance 
unless  the  party  affected  thereby,  or  his  agent  or 
attorney,  shall  make  affidavit  that  in  consequence 
thereof  he  is  unprepared  to  proceed  to  or  with  the  trial 
of  the  cause  at  that  term;  and  if  the  cause  thereof  is 
on  account  of  material  evidence  which  the  party  can- 
not produce,  unless  time  be  given  him  for  the  purpose, 
stating  in  such  affidavit  what  particular  fact  or  facts 
the  party  expects  to  prove  by  such  evidence,  and  that 
he  verily  believes  that  if  the  cause  is  continued  he  will 
be  able  to  procure  the  same  by  the  next  term  of  the 
court:  PROvmED,  that  if  the  application  for  contin- 
uance is  on  account  of  the  absence  of  evidence,  and  the 
court  is  satisfied  that  such  evidence  would  not  be  ma- 
terial on  the  trial  of  the  cause,  or  if  the  other  party  will 
admit  the  affidavit  in  evidence  subject  to  the  effect 


55 

given  to  affidavits  for  a  continuance  in  this  chapter, 
the  cause  shall  not  be  continued." 

Besides  the  above  provisions  concerning  amend- 
ment, there  is  another  provision  almost  similar  in  the 
Illinois  Statutes  entitled  "Chancery,"  which  will  be 
found  below. 

Anieiulmenis  to  conform  to  proofs  taken:  The  stat- 
ute and  the  decisions  of  Illinois  make  it  proper  for  the 
court  to  permit  amendments  to  conform  to  proofs  al- 
ready taken.  Note  the  following  decision,  rendered  in 
the  case  of  Gordon  et  al.  v.  Re^molds,  114  111.  123: 

''Under  the  third  objection,  it  is  insisted  the  court 
erred  in  allowing  appellee  to  amend  his  original  bill 
after  the  evidence  was  substantially  all  heard,  so  that 
the  allegations  and  proof  might  correspond.  This  was 
not  only  not  error,  but  is  a  practice  highly  commend- 
able, and  absolutely  necessary  in  a  great  many  cases 
to  a  proper  administration  of  justice.  We  fully  recog- 
nize the  rule  contended  for  by  counsel  for  appellants, 
that  a  complainant  cannot  make  one  case  by  his  plead- 
ings and  another  by  his  evidence,  and  succeed.  To 
obviate  this,  he  should  do  as  was  done  in  this  case — 
obtain  leave  to  and  amend  liis  pleadings  so  as  to  fit  the 
case  shown  by  the  e^ddence.  It  is  not  material  when 
such  amendments  are  made,  except  as  to  the  terms  the 
court,  in  its  discretion,  might  see  proper  to  impose  as 
a  condition  to  permitting  the  amendment.  Usually 
these  amendments  are  made  after  the  evidence  is  all 
in,  and  the  variance  is  brought  out  in  the  course  of  the 
argument,  and  it  sometimes  occurs  that  several  amend- 
ments of  this  nature  and  for  this  purpose  are  made 
at  different  times  during  the  final  argument  of  the 
case.  These  amendments  are  purely  discretionary, 
and  ordinarily,  in  the  absence  of  evidence  showing  an 
abuse  of  a  reasonable  discretion,  are  not  subject  to  re- 
view." (Chapter  22,  Chancery,  Sec.  37;  Jetferson 
County  V.  Ferguson  et  al.,  13  111.  35 ;  Moshier  v.  Knox 
College,  32  111.  163 ;  Mason  v.  Baird,  33  111.  205 ;  Marble 
v.  Bonhotel,  35  111.  248;  Hewitt  et  al.  v.  Dement  et  al., 
57  111.  502 ;  Lewis  et  al.  v.  Lanphere,  79  111.  189 ;  Booth 
et  al.  V.  AViley  et  al.,  102  111.  99;  Scott  et  al.  v.  Harris 
et  al.,  113  111.  457;  Gordon  et  al.  v.  Reynolds,  114  111. 
123 ;  American  Bible  Society  et  al.  v.  Price,  115  111.  635 ; 
Koch  et  al.  v.  Roth,  150111.  217 ;  Cooper  v.  Gum,  152  111. 


56 

474;  Wolverton  v.  Taylor  &  Co.,  157  111.  494;  So.  Chi- 
cago Brew.  Co.  v.  Taylor,  205  111.  142). 

Where  a  bill  is  amended  to  conform  to  the  proofs 
already  taken,  and  treated  as  if  in  issue,  an  amended 
answer  is  proper,  not  only  for  the  purpose  of  formally 
and  regularly  presenting  the  new  issue  to  the  court, 
but  for  the  further  purpose  of  permitting  the  defend- 
ant in  his  amended  answer  to  allege  defenses  (So. 
Chicago  Brew.  Co.  v.  Taylor,  205  111.  142).  If  defend- 
ant treated  complainant's  proof  as  if  in  issue  the  court 
in  granting  leave  will  probably  limit  his  defenses  to 
such  as  may  be  necessary  to  make  defendant's  answer 
conform  to  proofs  already  taken  in  his  favor.  The 
doctrine  that  allegations  and  proofs  must  correspond 
applies  as  well  to  the  answer  as  to  the  bill  (Dowden 
V.Wilson,  108  111.  257). 

In  Illinois,  upon  an  amendment  to  conform  to  proofs, 
being  filed,  the  filing  of  an  answer  making  an  entirely 
new  defense  will  not  avail  to  set  aside  the  statute  and 
gain  a  continuance  for  further  evidence  or  preparation 
for  the  defendants,  without  the  statutory  showing. 
The  question  of  a  continuance  upon  amendment  is 
governed  by  statute  (Koch  v.  Roth,  150  111.  217; 
Beneppe  v.  Meier,  75  111.  App.  566).  Chapter  22,  en- 
titled '^Chancery,"  Sec.  37,  adopted  by  the  Revision 
of  1874  and  continued  the  same  to  this  day,  is  as  fol- 
lows: 

Extending  time  to  plead,  awendments:  "The  court 
may  extend  the  time  for  answering,  replying,  plead- 
ing, demurring,  or  joining  in  demurrer;  and  may 
permit  the  parties  to  amend  their  bills,  pleas,  an- 
swers and  replications,  on  such  terms  as  the  court 
may  deem  proper,  so  that  neither  party  be  surprised 
nor  unreasonably  delayed  thereby ;  and  no  amendment 
shall  be  cause  for  a  continuance  unless  th?  part^^  to  be 
affected  thereby,  or  his  agent  or  attorney,  shall  make 
affidavit  that,  in  consequence  thereof,  he  is  unprepared 
to  proceed  to  trial  of  the  cause  at  that  term,  and  that 
he  verily  believes  that  if  the  cause  is  continued  such 
party  will  be  able  to  make  such  preparations."  (See 
also  Sec.  42  of  111.  Practice  Act). 

The  Illinois  Revised  Statutes  of  1845  and  until  the 


57 

Eevision  of  1874  did  not  contain  any  provision  regu- 
lating continuances  upon  amendments  and  thus  con- 
tinuances depended  upon  the  discretion  of  the  court 
until  the  Revision  of  1874. 

AYliere  the  affidavits  in  support  of  the  motion  for  a 
continuance  do  not  show  diligence  and  the  essential 
facts  required  as  reasons  for  a  continuance,  the  motion 
will  be  refused  (Halm  v.  Huber,  83  111.  243). 

If  defendant  (upon  complainant's  amendment  to 
conform  to  proofs  treated  as  if  in  issue),  desires  to 
amend  his  answer  and  to  put  in  an  entirely  new  de- 
fense, he  should  obtain  leave  of  court  and  submit  to 
the  court's  discretion  to  permit  the  amendment.  It 
cannot  be  slipped  in  under  the  guise  of  answering  com- 
plainant's  amendment. 

When  evidence  upon  a  point  not  in  issue  is  offered, 
if  the  opposing  party  desires  to  stop  such  evidence 
and  force  his  adversary  to  then  and  there  amend  his 
pleadings  before  putting  it  in,  he  should  make  that 
specific  objection.  The  court  upon  application  may, 
of  course,  allow  the  required  amendment,  but  must  then 
give  the  objecting  party  such  extensions  of  time  (upon 
the  filing  of  proper  affidavit)  as  may  be  necessary  to 
allow  all  parties  ample  opportunity  to  meet  the  issues 
(American  Bible  Society  v.  Price,  115  111.  635;  Moshier 
V.  Knox  College,  32  111.  164).  A  party  thus  refusing 
to  treat  as  in  issue,  what  is  not  as  yet  in  issue,  is  uu- 
hampered  in  his  amended  answer.  It  may  contain  new 
defenses. 

In  Illinois,  when  an  amendment  to  the  bill  brings 
in  a  new  issue,  it  is  proper  for  the  defendant  to  file 
an  amended  answer,  so  as  regularly  to  present  the 
new  issue  to  the  court.  ''As  a  general  rule,  where 
complainant  amends  his  bill,  the  defendant  in  the  case 
should  answer  the  amended  bill,  or  a  rule  should  be 
laid  upon  him  to  answer"  (Harms  v.  Jacobs,  160  111. 
593,  citing  Gage  v.  Brown,  125  111.  522 ;  Adams  v.  Gill, 
158  111.  192;  Bauer  Grocer  Company  v.  Zelle,  172  111. 
412). 

Applications  to  amend  in  equity  are  be  addressed 
to  the  discretion  of  the  court  (McArtee  v.  Engart,  13 


58 

111.  242;  Campbell  v.  Powers,  139  111.  128).  An  amend- 
ment filed  without  leave  is  properly  stricken  from  the 
files  (Field  v.  Golconda,  81  111.  App.  165;  111.  Stat. 
Amendment,  Sec.  8). 

The  regular  and  proper  course  upon  a  material 
amendment  to  the  bill  is  for  the  court  to  set  all  de- 
faults aside ;  but  whether  there  is  such  an  order  or  not, 
filing  an  amendment  to  a  bill  of  itself  sets  default 
orders  aside  (So.  Chicago  Brew.  Co.  v.  Taylor,  205  111. 
142;  Lyndon  v.  LjTidon,  69  111.  43;  Gibson  v.  Rees,  50 
111.  383). 

MASTERS  IN  CHANCERY. 

A  master  in  chancery  is  an  officer  of  the  court  of 
chancery  and  acts  as  an  assistant  to  the  chancellors. 
His  duties  and  powers  are  governed  by  statutes,  rules 
of  court,  and  the  general  practice  of  courts  of  chancery. 
His  duties,  though  often  judicial  in  character,  are  held 
to  be  ministerial  duties  and  not  judicial  (Ennesser  v. 
Hudek,  169  111.  494;  Hards  v.  Burton,  79  111.  504).  The 
matters  referred  to  a  master  by  the  chancellors,  vary. 
He  may  be  ordered  to  do  a  particular  ministerial  act ; 
he  may  be  ordered  to  take  the  testimony  in  a  case  and 
report  the  same;  he  may  be  ordered  to  take  the  testi- 
mony in  a  case  and  report  the  same,  together  with  his 
conclusions  thereon ;  in  fact,  there  is  hardly  any  matter 
in  a  chancery  cause  which  the  chancellor  may  not 
refer  to  a  master  in  chancery.  In  Illinois,  the  statute 
provides  that  masters  may  take  depositions,  both  in 
law  and  in  equity;  may  administer  oaths;  have  power 
to  compel  the  attendance  of  witnesses ;  take  aclmowl- 
edgments  to  deeds  and  other  instruments  of  writing; 
in  the  absence  of  the  judge,  order  the  issuing  of  writs 
of  habeas  corpus,  ne  exeat,  and  injunction;  and  per- 
form all  other  duties  which,  according  to  the  laws 
of  this  State  and  the  practice  of  the  courts  of  chan- 
cery, appertain  to  the  office.  The  statute  also  provides 
that  upon  default  or  upon  issue  being  joined  in  the 
case,  the  cause  may  be  referred  to  a  master  in  chan- 
cery to  take  the  testimony  and  report  the  same,  or  to 


59 

take  the  iestimony  and  report  the  same,  together  with 
his  conclusions.  By  a  rule  of  the  Cook  County  Chan- 
cery Courts,  the  master  is  authorized  to  rule  on  the 
admissibility  of  evidence. 

Except  where  the  statutes  or  the  chancery  rules  of 
court  provide  otherwise,  a  master  can  act  only  upon  an 
order  of  reference  entered  by  the  court  (Preston  v. 
Hodgen,  50  111.  56). 

The  order  of  reference  to  a  master  should  always 
clearly  show  what  issue  or  matter  is  referred  to  him, 
whether  the  issues  at  large  or  only  some  siDecial  matter 
or  matters  connected  therewith. 

Eeferences  to  a  master  are  discretionary  with  the 
court  (Land  Co.  v.  Peck,  112  111.  431;  Harding  v. 
Harding,  180  111.  481),  except  when  the  suit  involves  a 
complicated  accounting.  In  the  latter  case  a  reference 
is  necessary  (Moss  v.  McCall,  75  111.  190;  Mosler  v. 
Norton,  83  111.  519) ;  and  a  reference  is  also  necessary 
where  the  testimony  is  voluminous  and  conflicting 
(Beale  v.  Beale,  116  111,  292) ;  but  not  so  where  the 
amount  due  under  a  contract  is  a  simple  matter 
(Cusack  V.  Budasz,  187  111.  392) ;  nor  where  there  is 
mere  computation  of  pa^Tnents  and  interest  (Carroll 
V.  Tomlinson,  192  111.  398;  Belleville  v.  Citizens'  N. 
Ry.  Co.,  152  111.  189). 

Section  38  of  the  Illinois  Statute  on  evidence,  com- 
pels a  chancery  court  to  receive  oral  evidence  on  the 
trial,  if  desired  by  either  party.  This  means  that  if 
either  party  desires  it,  the  judge  must  on  the  trial  re- 
ceive oral  evidence  in  the  same  manner  as  in  law  cases. 
Therefore,  in  Illinois  it  would  seem  to  be  a  party's 
right  to  have  the  court  hear  and  determine  his  cause 
without  the  cost  of  a  reference  to  a  master,  unless  the 
case  involves  a  complicated  accounting  or  voluminous 
testimony.  (See  cases  in  preceding  paragraph.)  In 
the  latter  case  a  court  must  refer  the  case  to  a  master. 
It  would  seem  to  be  an  abuse  of  sound  discretion  to 
force  upon  an  unwilling  party,  the  cost  of  an  unneces- 
sary reference.  To  avoid  a  reference  with  the  attend- 
ant costs,  a  party  should  make  and  persist  in  a  specific 
objection  to  the  order  of  reference  upon  this  ground. 


60 

Otherwise  such  party  may  be  held  to  have  waived  his 
right  to  an  oral  hearing,  and  to  have  consented  to  the 
reference.  However,  if  the  cause  is  referred  against 
his  objection,  such  objecting  party  should  not  refuse 
to  put  in  his  proofs  before  the  master,  because  it  has 
been  decided  that  upon  a  reference  all  proofs  must 
be  put  in  before  the  master  (Cox  v.  Pierce,  120  111. 
556;  Gould  V.  Banking  Co.,  36  111.  App.  390),  but  he 
should  persist  in  his  objection  before  the  master  and 
again  before  the  court,  upon  the  coming  in  of  the 
master's  report,  upon  the  ground  that  the  cost  of  the 
reference  was  unnecessary.  This  ground  of  objection 
will,  of  course,  be  obviated  if  the  party  seeking  and 
obtaining  the  reference  bears  the  entire  cost  of  the 
reference. 

The  Cook  County,  Illinois,  Chancery  rules  provide 
that  no  reference  shall  be  allowed  in  default  divorce 
cases  except  as  to  questions  of  alimony  and  of  prop- 
erty. 

Duty  and  Poiver  of  Master  in  U.  S.  Courts:  The 
master  has  power  to  regulate  all  the  proceedings 
in  every  hearing  before  him  upon  references;  and 
he  has  full  authority  to  examine  the  parties  in  the 
cause,  upon  oath,  touching  all  matters  contained  in  the 
reference;  and  also  to  require  the  production  of  all 
books,  papers,  writings,  vouchers  and  other  docu- 
ments applicable  thereto ;  and  also  to  examine  on  oath, 
viva  voce,  all  witnesses  produced  by  the  parties  before 
him,  and  to  order  the  examination  of  other  witnesses 
to  be  taken  under  a  commission  to  be  issued  upon  his 
certificate  from  the  clerk's  oflQce  or  by  deposition,  ac- 
cording to  the  Acts  of  Congress,  or  otherwise,  as  pro- 
vided in  the  Equity  rules ;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved 
before  him;  and  generally  to  do  all  other  acts,  and 
direct  all  other  inquiries  and  proceedings  in  the 
matters  l)efore  him  which  he  may  deem  necessary  and 
proper  to  the  justice  and  merits  thereof  and  the  rights 
of  the  parties  (IT.  S.  Eq.  Rule  77).  The  orderly  and 
accepted  procedure  is  to  present  all  objections  and 
questions  arising  before  the  master  in  the  form  of  ex- 


61 

ceptions  to  his  report  (Lill  v.  Clark,  20  Fed.  455; 
Bate  Refrig.  Co.  v.  Gillette,  28  Fed.  673).  Witnesses 
living  within  the  district  may,  upon  notice  to  the  op- 
posite party,  be  subpoenaed  to  testify  before  the  mas- 
ter (U.  S.  Eq.  Rule  78).  The  admission  and  rejec- 
tion of  evidence  rests  within  the  sound  discretion  of 
the  master  (U.  S.  Eq.  Rule  77,  1884;  Wooster  v. 
Gumbirner,  20  Fed.  167).  The  court  cannot  refer  all 
the  issues  to  be  passed  upon  by  the  master  except  upon 
consent  of  the  parties  (Kimberly  v.  Arms,  129  U.  S. 
524;  Davis  v.  Schwartz,  155  U.  S.  631). 

PRODUCTION  OF  BOOKS  AND  WRITINGS  BEFORE  MASTER. 

If  the  order  of  reference  contains  a  direction  that 
the  parties  produce  before  the  master,  wpon  oath,  all 
books  or  writings  in  their  possession  or  power  relating 
to  the  matter  of  the  reference,  and  that  the  parties  be 
examined  upon  interrogatories,  as  the  master  shall  di- 
rect, the  words  "as  the  master  shall  direct"  apply  to 
both  branches  of  the  direction,  namely,  to  the  produc- 
tion of  deeds  and  to  the  examination  on  interrogato- 
ries ;  and  they  are  considered  important  as  vesting  the 
master  with  discretion  upon  the  subject  of  production 
(1  Barber's  Ch.  Pr.  480).  Under  our  practice,  it  is 
best  for  the  master  to  order  the  production  of  books 
and  papers  by  subpoena  duces  tecum,  inserting  the 
words :  ' '  And  then  and  there  bring  with  you  and  pro- 
duce before  said  master  all  deeds,  books,  papers  and 
writings  in  your  custody  or  power  relating  to  the  mat- 
ter of  reference."  {In  re  0 'Toole  Estate,  1  Tuck.  39 
N.  Y.)  Or  the  production  may  be  enforced  by  taking 
out  and  serving  a  warrant  or  notice  signed  by  the  mas- 
ter and  requiring  the  production  of  the  certain  books 
and  writings  (1  Barber's  Ch.  Pr.  481). 

Although  the  language  of  the  order  of  reference  is 
general  that  the  parties  produce  all  books,  papers,  etc., 
the  master  is  to  exercise  his  discretion  in  determining 
what  books  and  papers  are  necessary  to  be  produced. 
The  discretion  of  the  master  is  limited  by  the  rules 
which  guide  the  court  in  compelling  a  discovery  of 


62 

books  and  documents  in  other  cases  (1  Barber's  Cli.  Pr. 
481;  Lester  v.  People,  150  111.  408). 

The  master  has  power  to  receive  evidence,  but  cannot 
grant  leave  to  withdraw  exhibits  upon  leaving  copies 
thereof  (Bolter  v.  Kozolwski,  211  111.  79).  Therefore, 
the  master  should  exercise  caution  in  impounding  books 
and  writings  under  the  name  of  evidence  in  a  cause. 

To  obtain  an  order  for  the  production  of  papers 
or  books,  application  is  made  to  the  court  or  master 
by  special  motion  (1  Barb.  229)  and  in  Illinois  upon 
affidavit  that  the  production  of  the  papers  or  books  is 
necessary  to  enable  the  party  making  the  application 
to  prosecute  or  defend  the  suit.  Unless  a  showing  is 
made,  upon  good  and  sufficient  cause,  that  the  evidence 
sought,  or  that  the  books  and  papers  required  to  be 
produced,  contain  evidence  pertinent  to  the  issue  on 
behalf  of  the  party  applying  therefor,  the  application 
should  be  denied  "(Lester  v.  People,  150  111.  408-418; 
Bentley  v.  People,  104  111.  App.  353;  Wynn  v.  Taylor, 
109  111.  App.  603;  111.  Stat,  on  Evidence,  Sec.  9). 

REFERENCE  TO  STATE  ACCOUNT. 

Upon  a  reference  to  a  master  to  take  and  state  the 
accounts  between  parties,  the  court  should  first  find 
and  declare  the  rights  of  the  parties  and  the  rule  to 
be  adopted  in  stating  the  account  (Moffett  v.  Hanner, 
154  111649;  Hosier  v.  Norton,  83  111.  519) ;  and  the  ex- 
amination should  be  according  to  such  finding  and 
such  rule  (Remsen  v.  Remsen,  2  Johns.  Ch.  495).  Each 
party  should  bring  in  his  whole  account,  for  the  whole 
period  for  which  he  is  accountable,  in  the  form  of 
debtor  and  creditor  (Cook  County  Chancery  rules). 
The  master  should  then  ascertain  from  the  parties  or 
their  counsel,  by  written  acknowledgments,  what  items 
are  agreed  to  and  what  items  are  objected  to,  and  the 
proper  proofs  should  then  be  taken  (Daniels'  Ch.  Pr. 
1419).  In  Chicago  any  party  not  satisfied  with  the 
accounting  may  examine  the  accounting  party  (Cook 
County  Chan,  rules). 


63 


THE  RIASTER'S  REPORT. 


The  master's  findings  and  conclusions  are  embodied 
in  a  document  called  the  master's  report,  which  sliould 
show  the  proceedings  which  have  been  had  under  the 
order  of  reference,  the  evidence  taken,  and  the  findings 
of  fact  and  conclusions  of  law  reached  by  the  master, 
in  such  form  and  manner  that  the  court  may  intelli- 
gently act  upon  such  report  (Schnadt  v.  Davis,  185 
111.  476). 

The  decree  of  a  court  is  usually  not  written  by  the 
chancellor,  but  by  one  or  more  of  the  solicitors  of  the 
parties,  and  is  signed  by  the  chancellor  after  the  op- 
posing party  has  had  opportunity  to  argue  his  objec- 
tions thereto.  But  the  parties  have  little  to  do  with 
drafting  the  master's  report.  In  Illinois,  the  master  is 
compelled  to  draft  his  own  report  (Fitchburg  Steam 
Eng.  Co.  V.  Potter,  211  111.  138;  Keeley  Co.  v.  Har- 
greaves,  236  111.  332).  However,  each  of  the  opposing 
lawyers  has  the  right  to  draw  up  and  file  with  the  mas- 
ter a  written  brief  and  argument  stating  the  formal 
findings  of  fact  and  of  law  which  the  master  is  re- 
quested to  find,  together  with  a  reference  to  the  exhibit 
or  the  page  of  the  testimony  containing  evidence  and 
citing  the  authority  bearing  on  the  finding.  This  does, 
in  a  formal  and  accurate  manner  what  every  oral 
argument  before  the  master  does  in  an  informal  man- 
ner; and  this  procedure  insures  that  the  master  will 
carefully  consider  granting  or  refusing  each  finding  re- 
quested. Such  requests  for  specific  findings  may  fur- 
nish a  guide  for  later  objections  to  the  master's  report. 

A  lawyer's  brief  may  properly  contain  (1)  a  request 
that  the  master  make  certain  findings  of  fact,  stating 
the  findings  substantially  alleged  in  the  pleading,  and 
referring  to  the  evidence  for  and  against  such  findings ; 
also  (2)  a  request  that  the  master  find  certain  conclu- 
sions of  law,  stating  them  exactly  and  citing  author- 
ities. This  brief  and  argument  should  be  entitled  in 
the  cause,  and  the  request  for  findings  should  be  sub- 
stantially in  the  following  form : 

' '  On  behalf  of ,  complainant 


64 

(or  defendant)  in  tlie  above  entitled  cause,  we  respect- 
fully contend  that  the  pleadings,  orders  of  record, 
exhibits  and  evidence  in  the  above  entitled  cause  and 
referred  to  herein  will  justify  said  master  in  including 
in  his  report,  among  other  findings  of  fact,  the  follow- 
ing: 

"1.  That  (here  state  finding  substantially  as  al- 
leged in  the  pleading,  and  after  the  finding  refer  to 
the  exhibits  or  pages  of  testimony  bearing  pro  and 
con  on  the  finding). 

"2.     That,  etc. 

"We  further  respectfully  contend  and  request  that 
the  master  find  the  following  conclusions  of  law: 

"1.     That,  etc.  (cite  case  or  authority). 

"Dated  this  day  of  , 

(Signed)     " , 

Solicitor  for  Complainant 
"(or   Defendant)." 

OBJECTIONS    AND    EXCEPTIONS    TO    MASTER'S    REPORT. 

After  the  master  prepares  his  report,  it  is  usual  for 
him  to  notify  the  parties  and  fix  a  day  for  objections  to 
be  filed  before  him  to  such  report,  so  as  to  afford  the 
master  opportunity  to  modify  his  report  if  he  thinks 
fit.  If,  upon  a  hearing  of  the  objections,  the  master 
declines  to  modify  his  report,  the  parties  insisting  on 
such  objections  must  file  them  again  in  court,  under 
the  name  "Exceptions  to  the  Master's  Report,"  be- 
cause the  master's  findings  of  fact  are  conclusive  in 
the  absence  of  exceptions  so  filed.  (Marble  v.  Thomas, 
178  111.  540).  If  objections  are  not  filed  before  the 
master,  exceptions  will  not  be  considered  by  the  court 
(Jewell  V.  Paper  Co.,  101  111.  57;  Pennell  v.  Insurance 
Co.,  73  111.  303). 

A  decree  disposing  of  objections  to  the  master's  re- 
port should  specify  what  exceptions  were  sustained 
and  what  overruled,  so  that  the  Appellate  Court  may 
determine  the  basis  of  the  decree  entered  (Prender- 
gast  V.  McNally,  76  111.  App.  335). 

But  no  objections  are  necessary  to  a  master's  find- 
ings as  to  matters  of  law.    These  will  be  heard  by  the 


65 

court  without  the  filing  of  objections  or  exceptions 
(2  Dan.  952;  Hayes  v.  Hammond,  162  111.  135).  It 
serves  a  very  useful  purpose,  however,  to  file  before 
the  master  formal  objections  to  his  conclusions  of  law, 
citing  the  authorities.  It  may  induce  him  to  conclude 
differently. 

Objections  should  be  entitled  in  the  cause  and  should 
be  called: 

"objections  to  master's  report. '^ 
and  be  substantially  in  the  following  form: 

"Now  comes ,  complainant 

(or  defendant),  and  objects  to  the  master's  first  draft 
of  his  report  in  the  above  entitled  cause,  dated  the 
day  of , 

"1.  Because  the  master  has  found  that  (state  the 
finding  of  fact) ;  whereas  said  master  should  have 
found  that  (state  the  finding  of  fact  as  objector  thinks 
it  should  be  found).  One  ground  of  objection,  among 
others,  being  that  (said  master's  finding  is  contrary 
to  the  weight  of  evidence  and  contrary  to  confessions 
under  the  pleading;  or  state  other  objection).  See 
exhibit  B ;  also,  see  testimony,  pp.  127,  236,  250. 

"2.  Also  because  the  master  has  omitted  or  refused 
to  find  that  (here  state  the  finding  of  fact  which  was 
omitted  by  the  master,  and  which  the  party  objecting 
deems  it  essential  to  his  suit  for  the  master  to  have 
found).  The  ground  of  objection  among  others,  being 
that  (the  finding  is  material  to  complainant's  case,  and 
is  established  by  the  evidence).  See  testimony  pp.  17, 
24. 

"3.     Etc. 

"Wherefore,  said  objector  prays  the  master  to  mod- 
ify and  amend  the  said  draft  of  his  report  in  accord- 
ance with  the  objections  above  stated,  and  in  accord- 
ance with  the  exhibits  and  evidence  introduced,  and  the 
pleadings  on  file. 

"Dated  this day  of , 

(Signed)     "' 

"Solicitor  for  Complainant 
(or  Defendant)." 

It  is  important  for  the  objector  to  complain  because 


66 

the  master  omitted  certain  findings.  The  objector's 
attention  is  naturally  absorbed  with  the  findings  that 
appear  in  the  report.  In  his  desire  to  have  these  agree 
with  his  view,  he  is  likely  to  forget  proper  findings 
omitted  from  the  report.  A  carefully  drawn  master's 
report  should  contain  an  express  affirmative  or  nega- 
tive finding  as  to  each  material  fact  pleaded  in  the  bill 
or  answer,  or  a  finding  that  a  certain  averment  is  not 
supported  by  any  evidence  nor  confessed  in  any  plead- 
ing. After  each  finding  should  be  a  reference  to  the 
pages  or  exhibits  containing  testimony  pro  and  con 
bearing  on  the  finding.  Thus  the  report  vindicates 
itself  before  the  court.  (McMaunomy  v.  Walker,  63 
111.  App.  278;  Green  v.  Bishop,  1  Clifford  186). 

An  objection  that  the  findings  and  each  of  them  are 
not  warranted  by  the  evidence  is  not  sufficiently  spe- 
cific (Waska  v.  Klaisner,  43  111.  App.  611).  It  seems  in 
Illinois  objections  need  not  recite  or  point  out  the  evi- 
dence relied  upon,  but  only  need  point  out  distinctly 
the  findings  and  conclusions  sought  to  be  reversed 
(Hayes  v.  Hammond,  162  111.  133;  McMannomy  v. 
Walker,  167  111.  497).  Good  practice  requires  an  ob- 
jector not  only  to  point  out  the  finding  objected  to,  but 
also  to  state  the  ground  of  the  objection  (1  Barb.  551; 
2  Dan.  957 ;  2  Bates  Fed.  Eq.  821 ;  Hurd  v.  Goodrich, 
59  111.  455 ;  Harding  v.  Handy,  11  Wheaton  103 ;  Story 
V.  Livingston,  13  Peters  359;  Emerson  v.  Atwater,  12 
Mich.  314;  Singer  v.  Steele,  125  111.  429).  It  is  also 
good  practice  for  the  objector  to  cite  the  page  of  tes- 
timony or  the  number  of  the  exhibit  bearing  on  the 
subject-matter  of  the  objection  or  exception. 

A  master's  findings,  approved  by  the  court,  will  not 
be  disturbed  by  the  Supreme  Court  when  not  mani- 
festly and  clearly  against  the  weight  of  the  evidence 
(Miltimore  v.  Ferry,  171  111.  219);  but  they  are  not 
entitled  in  an  appellate  court  to  the  same  weight  as 
the  verdict  of  a  jury  at  law  (Ennesor  v.  Hudek,  169  111. 
494),  nor  will  they  have  the  same  weight  as  the  find- 
ings of  the  chancellor  when  the  witnesses  have  been 
heard  in  open  court  (Brueggestradt  v.  Ludwig,  184  111. 
24). 


67 

There  is  no  rule  of  practice  which  forbids  the  court 
making  additional  findings  upon  the  coming  in  of  the 
master's  report  besides  those  set  forth  in  the  report, 
if  the  evidence  accompanying  the  report  warrants  and 
supports  such  additional  findings.  The  court  is  not 
confined,  in  its  review  of  the  evidence,  to  the  m.ere 
question  of  ascertaining  whether  the  exceptions  filed 
to  the  report,  or  any  of  them,  should  be  sustained. 
When  the  master's  report  is  returned  into  court,  the 
party  objecting  to  it  may  file  exceptions,  upon  the 
hearing  of  which  the  whole  evidence  is  brought  for- 
ward, and  passes  iii  review  before  the  court  (McClay, 
Admr.  v.  Norris,  4  Gilm.  370 ;  Wolfe  v.  Bradberry,  140 
111.  582). 

SPECIAL  COMMISSIONERS. 

The  phrase  "special  commissioner"  means  a  person 
or  officer  holding  a  "special  commission"  in  the  shape 
of  letters  patent  issued  by  a  Government,  or  a  war- 
rant contained  in  an  order  of  court;  which  letters  or 
order  of  court  define  the  powers  or  duties  of  the 
person  or  officer  so  specially  commissioned  (Cyc.  Vol. 
8,  p.  334  and  Vol.  11,  p.  622;  also  see  Smith's  Chan- 
cery Prac.  on  "Commissioners  to  Take  Testimony"). 
In  chancery  practice,  special  commissioners  are  per- 
sons or  officers  specially  appointed  under  a  dedimus 
or  commission  to  take  depositions  or  to  examine  wit- 
nesses. (2  Dan.  466).  Special  commissioners,  with  the 
duties  of  a  master  in  chancery,  are  unknown  in  chan- 
cery proceedings  except  as  set  up  by  special  statutes. 

In  Cook  County,  Illinois,  even  in  cases  other  than 
cases  under  the  Lost  or  Destroyed  Records  Act,  the 
regularly  appointed  masters  in  chancery,  who  possess 
experience  and  have  given  the  statutory  bond  for  the 
faithful  discharge  of  their  duties  as  masters,  are  some- 
times superseded  by  the  appointment  of  special  com- 
missioners to  do  the  work  of  masters.  Such  practice 
is  unjust  to  the  regular  masters,  who  are  obliged,  at 
their  own  expense,  to  furnish  suitable  accommodations 
for  hearings,  etc.,  and  is  a  violation  of  Section  5  of  the 


68 

Illinois  Statutes  relating-  to  the  appointment  of  special 
masters. 

Section  5  of  the  Illinois  statute  on  masters  in  chan- 
cery, passed  in  1872,  is  as  follows : 

"Whenever  it  shall  happen  that  there  is  no  master 
in  chancery  in  any  county,  or  when  such  master  shall 
be  of  counsel  or  of  kin  to  either  party  interested,  or 
otherwise  disqualified  or  unable  to  act  in  any  suit  or 
matter,  the  court  may  appoint  a  special  master  to 
perform  the  duties  of  the  office  in  all  things  concern- 
ing such  suit  or  matter." 

Section  20  of  the  Illinois  Statutes  entitled,  "Lost  or 
Destroyed  Records,"  enacted  in  1872,  is  as  follows: 

"The  judges  of  courts  having  chancery  jurisdiction 
in  such  county  shall  have  power  to  appoint  as  many 
special  commissioners,  from  time  to  time,  as  they  may 
deem  necessary  to  carry  out  the  provisions  of  this  act, 
in  addition  to  the  masters  in  chancery  of  said  courts, 
who  shall  be  ex  officio,  such  special  commissioners, 
to  take  evidence  and  report  all  such  petitions  as  may 
be  referred  to  them.  The  fees  of  all  masters  in  chan- 
cery, commissioners,  clerks,  sheriffs,  and  all  officers 
and  employes,  for  services  under  this  act,  shall  not,  in 
any  case,  exceed  two-thirds  of  the  fees  now  or  hereafter 
provided  by  law  for  the  same  services." 

Section  39  of  the  Illinois  Chancery  Statute,  passed 
in  1872,  is  as  follows : 

"The  court  may,  upon  default,  or  upon  issue  being 
joined,  refer  the  cause  to  a  master  in  chancery,  or 
special  commissioner,  to  take  and  report  evidence, 
with  or  without  his  conclusions  thereupon. ' ' 

No  person  with  the  duties  of  a  master  should  be 
specially  appointed  in  any  suit  or  matter  except  in  ac- 
cordance with  Section  5  of  the  Illinois  Statutes  relat- 
ing to  masters  in  chancery.  A  special  commis- 
sioner, with  the  duties  of  a  master,  is  nothing"  else 
than  a  special  master. 

Section  39  of  the  Illinois  Chancery  Practice  Act 
must  be  read  in  connection  with  Section  20  of  the  Lost 
and  Destroyed  Records  Act  and  with  Section  5  of  the 
Master  in  Chancery  Act.  It  then  becomes  plain  that 
the  court  has  no  power  to  appoint  special  commission- 
ers with  the  duties  of  a  master  in  chancery,  except 


69 

to  perform  duties  under  the  Lost  and  Destroyed  Eec- 
ords  Act.  This  section  plainly  means  that  a  case  may 
be  referred  to  a  master  in  chancery  or  (if  it  is  a 
burnt  record  case)  to  a  special  commissioner. 

If  a  special  commissioner  ivith  the  duties  of  a 
master  in  chancery  were  known  to  chancery  practice, 
it  would  not  be  necessary  to  carefully  set  up  such  an 
officer  in  the  Lost  and  Destroyed  Eecords  Act.  Fur- 
thermore, if  a  court  of  chancery,  regardless  of 
the  Destroyed  Records  Act,  has  the  power  to  appoint 
special  commissioners  with  the  duties  of  a  master 
in  chancery,  then  section  five  in  the  Master  in  Chancery 
Act  clearly  limiting  the  appointment  of  special  mas- 
ters, is  futile.  This  section  is  evaded  every  time  a 
court,  except  in  proceedings  under  the  Burnt  Records 
Act,  appoints  a  "special  master"  under  the  name  of  a 
"special  commissioner." 

The  case  of  Davis  v,  Davis,  30  111.  180,  approving  the 
appointment  of  special  masters,  was  decided  in  1863, 
before  the  enactment  of  the  statute  of  1872  restricting 
the  appointment  of  special  masters.  The  case  of  Mc- 
Intyre  v.  The  People,  227  111.  30,  merely  holds  that  a 
notary  in  that  case  might  have  had  more  power  in  sub- 
poenaing witnesses  if  he  had  been  appointed  a  spe- 
cial master  to  take  the  evidence  under  Section  5  of 
Chapter  90.  The  writer  knows  of  no  Illinois  case 
that  justifies  the  violation  of  Section  5  of  the  Master 
in  Chancery  Act  in  the  manner  above  discussed. 

Illinois  practitioners  who  persist  in  ignoring  the  stat- 
utes by  having  causes,  other  than  Destroyed  Record 
causes,  referred  to  a  special  commissioner  "to  take 
and  report  the  evidence,  with  his  conclusions  thereon," 
should  at  least  be  careful  to  have  the  court  in  its  order 
grant  to  such  special  appointee  all  the  important  pow- 
ers needed  b}^  a  master  in  chancery.  Being  unknown 
to  chancery  practice,  such  appointee  can  have  only  the 
powers  specially  granted  in  the  court's  order.  It  is 
very  doubtful  otherwise  that  he  can  cause  the  parties 
or  their  witnesses  to  appear  before  him,  or  that  he 
can  sub})(rna  witnesses,  or  that  he  can  rule  parties  to 
close  their  proofs  by  a  certain  day,  or  that  he  can  rule 


70 

on  the  evidence  according-  to  the  rules  of  court  govern- 
ing masters  in  chancery,  or  that  he  can  charge  any 
fees,  etc. 

There  is  only  one  safe  practice,  which  is  to  refer  De- 
stroyed Eecord  causes  to  a  special  commissioner  or  to 
a  regular  master  in  chancery,  and  to  refer  all  other  ref- 
erable causes  to  a  regular  master,  or  to  a  special  mas- 
ter appointed  under  circumstances  set  forth  in  Section 
5  of  the  statute, 

EXAMINERS. 

An  examiner  is  an  officer  of  a  chancery  court.  His 
duties  are  to  receive  interrogatories  for  examination 
and  cross-examination  of  witnesses,  and  to  examine 
and  cross-examine  such  witnesses ;  to  reduce  the  depo- 
sitions of  such  witnesses  to  writing,  and  to  read  over 
such  depositions  to  the  witnesses  previously  to  their 
signing  the  same.  He  is  authorized  to  administer  the 
usual  oaths  and  to  take  the  usual  affirmations  of  wit- 
nesses. By  statutes  of  the  various  states  and  by  rules 
of  practice  in  the  various  courts,  the  duties  of  the  ex- 
aminers and  of  special  commissioners  are  now  per- 
formed also  by  notaries  public,  justices  of  the  peace, 
masters  in  chancery  and  judges  of  courts.  In  Illinois 
examiners  are  appointed  by  special  commission  and 
are  called  special  commissioners."  By  statute  also 
any  notary,  justice  of  the  peace,  and  certain  other 
officers,  may  act  as  examiners  to  take  testimony  upon 
the  proper  statutor}^  notice  to  the  parties. 

EVIDENCE  IN  CHANCERY. 

Before  the  tune  for  introducing  evidence,  each  partj^ 
should  determine  what  facts  have  been  admitted  and 
what  have  been  denied,  by  (1)  the  pleadings,  by  (2) 
defaults,  by  (3)  agreements  or  stipulations  in  writ- 
ing. 

1.  Admissions  by  the  pleadings  may  be  implied  by 
such  statements  of  fact  as  the  parties  are  presumed 
to  have  admitted  under  the  forms  of  pleading.  For 
example,  filing  a  plea  grants  the  truth  of  all  the  matters 


71 

well  pleaded  in  tlie  bill  and  not  traversed  by  the  plea 
(2  Dan.  396). 

Admissions  by  the  pleadings  may  be  express:  All 
admissions  made  by  the  defendant  in  his  answer  may 
be  read  in  evidence  against  him,  without  making  the 
denials  contained  in  the  answer  evidence  in  his  favor 
(Smith  V.  Potter,  3  Wis.  432).  Infants  are  the  special 
wards  of  chancery  courts,  and  therefore  an  exception 
exists  in  their  favor.  Even  if  an  infant's  guardian 
ad  litem,  in  his  answer,  should  admit  certain  allega- 
tions in  the  Inll,  nevertheless,  as  against  such  infant, 
complainant  must  strictly  prove  each  such  material 
allegation  just  as  if  it  had  been  denied  by  the  answer. 
Neither  a  default  nor  a  decree  pro  confesso  can  be  en- 
tered against  an  infant  (McClay  v.  Norris,  9  111.  370). 

The  facts  positively  alleged  in  the  bill  of  course  are 
admissions,  and  may  be  read  in  evidence  by  the  de- 
fendant as  admissions  made  by  the  complainant.  The 
complainant  cannot  read  his  own  bill  as  evidence  in 
his  favor,  unless  the  defendant  by  his  answer  has 
admitted  expressly  or  by  implication  the  truth  of  cer- 
tain parts  of  the  bill,  in  which  case  the  complainant 
may  read  such  portions  of  his  bill  as  the  admissions 
of  the  defendant  (McGowan  v.  Young,  2  Stewart,  276). 

It  is  not  necessary  that  the  defendant  should  in  his 
answer  make  a  positive  admission  in  order  to  have  it 
read  in  evidence  against  him;  it  will  be  sufficient  if  he 
alleges  that  he  believes,  or  is  informed  and  believes,  it 
to  be  true;  unless  it  is  accompanied  by  some  statement 
which  prevents  its  being  considered  as  an  admission 
(Potter  V.  Potter,  1  Ves.  Sen.  274). 

2.  By  default  in  appearing  or  answering,  a  defend- 
ant confesses  the  entire  bill.  By  default  in  filing  a  rep- 
lication, complainant  confesses  the  truth  of  the  answer, 
unless  the  parties  proceed  to  proofs  as  if  replication 
were  filed  (Marple  v.  Scott,  41  111.  50). 

3.  To  save  delay  and  expense,  parties  often  stipu- 
late in  writing  as  to  certain  facts. 

Otherwise,  all  other  material  allegations,  whether  in 
the  bill  or  in  defensive  pleadings,  must  be  proved  by 
evidence. 


72 


TAKING  TESTIMONY. 


Formerly,  all  testimony  in  chancery  was  taken  se- 
cretly and  reduced  to  writing  upon  written  interroga- 
tories and  cross-interrogatories  before  an  examiner, 
neither  party  to  the  suit  being  permitted  to  be  present, 
even  by  counsel.  Neither  party  was  entitled  to  a  copy 
of  the  interrogatories  prepared  by  the  other  for  his 
witnesses.  Each  party  drew  up  the  interrogatories  for 
his  own  witness,  and  the  witnesses  were  separately  and 
secretly  examined  by  the  examiner,  and  no  part  of  the 
testimony  was  disclosed  to  either  side  until  publication 
day.  But  each  party  was  entitled  to  a  list  of  his  oppo- 
nent 's  witnesses,  that  he  might  examine  them  upon  cross- 
interrogatories.  But  since  he  neither  knew  what  the 
direct  interrogatories  were  nor  how  they  had  been  an- 
swered, such  cross-examination  was  unsatisfactory  and 
likely  to  do  his  cause  more  harai  than  good.  Full  direc- 
tions were  given  the  examiners  how  to  proceed.  The 
witness  was  not  permitted  to  see  the  interrogatories  he 
was  to  answer;  each  one  was  read  over  to  him  and  he 
was  required  to  answer  it  in  full  before  the  next  was 
read.  After  the  testimony  was  taken  it  was  filed  in 
court,  where  it  remained  till  publication  day ;  by  which 
is  meant  the  day  they  were  opened  for  inspection,  and 
each  side  was  furnished  with  copies.  Thus,  after 
the  cause  was  ready  for  hearing,  the  counsel  for  the 
first  time  learned  what  evidence  had  been  introduced 
(Darnell's  Ch.  Pr.  Chap.  XX;  Thompson's  Eq.  Prac). 

This  old  practice  has  been  modified  in  United  States 
courts  and  in  those  of  many  of  the  states,  including 
Illinois,  The  modern  tendency  is  to  allow  inspection 
of  interrogatories,  and  to  allow  oral  examinations  by 
counsel  as  well  as  upon  written  interrogatories  pro- 
pounded by  examiners,  and  to  allow  all  parties  and 
counsel  to  be  present.  Even  if  statutes  permit  oral 
evidence  in  court  or  before  the  master,  the  evidence  is 
preserved  in  writing  (Owen  v.  Ranstead,  22  111.  172). 
It  is  still  the  more  usual  practice  to  take  the  evidence 
and  reduce  it  to  writing  prior  to  the  court  hearing  of 


73 

the  cause,  and  before  a  master,  examiner  or  commis- 
sioner. 

It  is  important  that  students  and  lawyers  under- 
stand both  the  old  and  the  modern  method  of  taking 
evidence  in  chancery,  in  order  that  equity  cases  in  the 
different  jurisdictions  may  be  intelligently  read. 

PRESERVING   EVIDENCE    IN   THE   RECORD. 

In  chancery  cases,  courts  of  appeal  determine  ques- 
tions of  fact  from  the  evidence  in  the  record,  and  they 
are  not  bound  by  the  findings  of  the  lower  courts 
(Belleville  v.  Citizens'  Horse  Ry.  Co.,  152  111.  171; 
Blease  v.  Garlington,  92  IT.  S.  1).  Futhermore,  there 
are  no  presumptions  in  favor  of  the  validity  of  a 
decree  in  chancery,  as  there  are  in  favor  of  a  judgment 
at  law.  Therefore,  the  evidence  in  a  chancery  cause 
should  be  contained  in  the  record,  in  order  that  all 
testimony  introduced  will  appear  for  the  reviewing 
court.  Even  if  statutes  or  rules  of  court  permit  oral 
testimony  to  be  taken  on  trial  in  open  court,  as  at  law, 
a  stenographer  should  be  hired  to  reduce  it  to  writing ; 
and  the  party  offering  rejected  testimony  must  in  the 
Federal  courts  endeavor  to  obtain  the  court's  per- 
mission to  allow  the  rejected  testimony  to  go  on  record, 
subject  to  the  objection  and  ruling  of  the  court,  not 
in  the  form  of  an  "offer,"  but  in  the  form  of  question 
and  answer,  in  order  that  the  reviewing  court  may 
consider  the  evidence  in  question  without  remanding 
the  cause  for  the  purpose.  Note  the  following  U.  S. 
Supreme  Court  case : 

"While,  therefore,  we  do  not  say  that,  even  since 
tlie  Revised  Statutes,  the  circuit  coiirts  may  not  in 
their  discretion,  under  the  operation  of  the  rules,  per- 
mit the  examination  of  witnesses  orally  in  open  court 
upon  the  hearing  of  cases  in  equity,  we  do  say  that  now 
they  are  not  by  law  required  to  do  so ;  and  that,  if  such 
practice  is  adopted  in  any  case,  the  testimony  presented 
in  that  form  must  be  taken  down  or  its  substance  stated 
in  writing  and  made  part  of  the  record,  or  it  will  be 
entirely  disregarded  here  on  an  appeal.  So,  too,  if  tes- 
timony is  objected  to  and  ruled  out,  it  must  still  be  sent 
here  with  the  record,  subject  to  the  objection,  or  the 


74 

ruling  will  not  be  considered  by  us.  A  case  will  not 
be  sent  back  to  have  the  rejected  testimony  taken,  even 
though  we  might,  on  examination,  be  of  the  opinion 
that  the  objection  to  it  ought  not  to  have  been  sus- 
tained. Ample  provision  having  been  made  by  the  rules 
for  taking  the  testimony  and  saving  exceptions  (by  ex- 
aminations before  an  examiner,  whereby,  under  XJ.  S. 
Eq.  rule  67,  the  testimony  objected  to  and  the  objection 
are  included  in  the  deposition,  and  thus  preserved  in 
the  record)*,  parties,  if  they  prefer  to  adopt  some  other 
mode  of  presenting  their  case  (such  as  oral  testimony 
in  open  court)*,  must  be  careful  to  see  that  it  conforms 
in  other  respects  to  the  established  practice  of  the 
court"  (Blease  v.  Garlington,  92  U.  S.  1;  Massenberg 
V.  Dennison,  107  Fed.  21). 

That  is  to  say,  the  party  wishing  to  rely  upon  re- 
jected testimony  taken  orally  before  the  court,  must 
see  to  it  that  the  court  preserves  the  testimony  in  ques- 
tion, and  the  objection  and  ruling  thereto,  in  writing 
of  record  somewhat  after  the  manner  of  an  examiner 
under  U.  S.  Eq.  Rule  67.  The  courts  of  Illinois  do  not 
follow  this  strict  practice  (See  objections  and  rulings 
upon  evidence,  below). 

In  Illinois,  as  in  most  other  jurisdictions,  to  sustain 
a  decree  in  chancery,  the  evidence  upon  which  it  is 
based  must,  in  some  manner,  be  preserved  in  the  rec- 
ord (Waugh  V.  Bobbins,  33  111.  182).  Recitals  in  the 
decree  serve  the  purpose  of  preserving  evidence  of 
record  since  the  passage  of  the  Illinois  statute  per- 
mitting oral  evidence  in  chancery  causes  (Gorman  v. 
Mullins,  172  111.  349).  If  oral  evidence  was  taken  and 
not  reduced  to  writing,  or  if  the  judge's  certificate 
of  evidence,  or  the  master's  report  of  evidence,  or  the 
depositions  containing  evidence,  are  lost,  and  thus  not 
part  of  the  court's  record  of  the  cause,  the  decree  will 
still  be  deemed  to  be  supported  by  evidence  duly  taken, 
if  the  decree  makes  specific  findings  showing  such 
facts  to  have  been  proved  as  were  not  admitted  by 
the  pleadings  (Grob  v.  Cushman,  45  111.  119).  But 
the  bare  general  finding  in  a  decree  that  "all  the 
material  allegations  in  the  bill  are  proved  and  that 

*The  parentheses  are  the  author's. 


75 

the  equities  of  the  case  are  with  the  complainant" 
will  not  sustain  a  decree  granting  relief  unless  such 
decree  be  based  upon  the  findings  in  a  verdict  of  a 
jury,  called  to  try  the  facts,  or  upon  the  findings  in 
a  master's  report  (Ohman  v.  Ohman,  233  111.  632). 
Admissions  in  the  pleadings  are  deemed  evidence  of 
record  (Atkinson  v.  Linden  Steel  Co.,  138  111.  187). 
Pro  confesso  decrees  need  not  be  supported  by  evi- 
dence of  record  (Smith  v.  Trimble,  27  111.  152),  nor 
a  decree  dismissing  a  bill  for  want  of  equity  (Jackson 
V.  Sackett,  146  111.  646),  or  otherwise  dismissing  the 
bill  (Banks  v.  Baker,  161  111.  281). 

OBJECTIONS  AND  RULINGS  UPON  EVIDENCE. 

Examiners,  commissioners  and  notaries  taking  dep- 
ositions are  not  supposed  to  be  qualified,  like  judges 
and  masters,  to  pass  upon  objections  to  evidence;  and, 
besides,  they  have  no  pleadings  to  show  what  issues 
form  the  case.  If  these  officers  were  permitted  to  pass 
upon  evidence,  errors  of  ruling  would  be  too  numer- 
ous and  cause  too  much  inconvenience,  especially  when 
depositions  are  taken  at  distant  places.  Hence,  the 
wise  practice  that  all  evidence  deposed  before  such  of- 
ficers be  received  subject  to  the  objections  stated,  and 
that  the  officer  taking  the  deposition  be  without  power 
to  reject  or  pass  judgment  upon  the  admissibility  of 
evidence  or  to  rule  upon  objections. 

If  an  objection  is  intended  to  be  insisted  upon  when 
the  deposition  is  read  to  the  court  at  the  hearing  for 
decree,  or  to  be  insisted  upon  when  later  the  case 
is  appealed,  it  should  first  be  made  in  time  to  give  op- 
portunitv  for  correction,  if  correction  be  possible 
(Millard  V.  Millard,  221  111.  86;  Glos.  v.  Hoban,  212  111. 
222;  1  Barb.  Chan.  287;  13  Cyc.  1009).  Objections 
based  on  informalities  and  irregularities  in  taking 
proofs  should  be  made  by  motion  to  suppress  the  dep- 
osition before  the  hearing,  and  if  overruled,  an  ex- 
ception should  be  taken;  but  all  more  substantial  ob- 
jections may  be  made  at  the  hearing  for  decree,  either 
before  or  after  the  evidence  is  read  (Swift  v.  Castle, 
23  111.  209 ;  111.  Cent.  v.  Pancbiango,  227  111.  170). 


76 

Exceptions  need  not  in  chancery  be  taken  or  pre- 
served to  the  rulings  upon  objections  to  evidence 
(Same  case)  . 

To  save  for  review  an  objection  as  to  the  admissi- 
bility of  evidence  the  objection  should  be  made  and 
insisted  upon  successively  before  the  master  when 
evidence  is  taken,  then  upon  objections  to  his  report, 
and  then  upon  exceptions  to  the  report  before  the 
chancellor  (Glos  v.  Hoban,  212  111.  222;  Ogden  B.  & 
L.  Ass.  V.  Mensch,  196  111.  561).  In  Cook  County, 
Illinois,  a  party  insisting  upon  an  objection  as  to  the 
admissibility  of  evidence  in  cases  on  hearing  before 
a  master,  must  bring  the  objection  before  the  chan- 
cellor after  taking  testimony  is  closed,  and  before  the 
master  has  made  his  report.    (See  Cook  County  Rules). 

Where  evidence  is  taken  in  open  court,  or  before 
a  master,  the  court  and  master  both  have  authority 
(Elwood  V.  Walter,  103  111.  App.  227;  Cook  County, 
111.  Chan.  Rules;  U.  S.  Eq.  Rule  77),  and  should  rule 
upon  objections  to  evidence  before  the  taking  of  the 
evidence  is  closed;  the  evidence  can  be  allowed  to 
appear  on  the  record  even  if  ruled  to  be  inadmissible. 
Otherwise  lawyers  will  be  misled  into  relying  upon 
evidence  which  a  reviewing  court  may  rule  to  be  im- 
proper under  the  objection,  and  which  might  have 
been  corrected  if  the  lower  court  or  the  master  had 
ruled  against  it.  Objections  produce  little  or  no  im- 
pression, but  a  ruling  of  the  court  or  master  produces 
caution.  The  benefit  of  an  objection  is  that  it  tends 
not  only  to  avoid  incompetent  testimony,  but  also  to 
give  opportunitv  to  offer  competent  testimony  (Mil- 
lard V.  Millard,'  221  111.  86).  Such  benefit  is  lost  if 
no  ruling  is  made.  A  party  may  suffer  as  much  if  the 
court  or  master  fails  to  rule  upon  objections,  as  when 
he  suffers  by  an  erroneous  ruling.  It  may  be  for  this 
reason  that  in  some  jurisdictions  objections  must  be 
called  to  the  attention  of  the  chancellor,  and  must  be 
specific  enough  to  point  out  the  grounds  of  incompe- 
tency (Hamilton  v.  S.  N.  Gold  Min.  Co.,  33  Fed.  562; 
Freeny  v.  Preeny,  80  Md.  406).  And  in  some  juris- 
dictions objections  are  deemed  to  be  waived  unless 


77 

a  ruling  is  insisted  upon  (Bunnel  v.  Stoddard,  4  Fed. 
Case  No.  2135;  C.  &  E.  I.  R.  R.  Co.  v.  Lawrence,  96 
111.  App.  637).  But  in  the  federal  practice,  under  the 
authority  of  Blease  v.  Garlington  (92  U.  S.  1),  a  judge 
or  a  master,  though  ruling  against  testimony,  should 
upon  request  allow  the  rejected  testimony  to  appear 
in  the  record,  subject  to  the  objection  and  ruling,  for 
the  reviewing  court  to  pass  upon.  In  the  federal 
courts  he  cannot  refuse  this  right  (Fayerweather  v. 
Ritch,  89  Fed.  529). 

The  federal  practice  requiring  any  and  all  kinds 
of  evidence  offered,  with  the  objections  and  rulings, 
if  any,  to  appear  on  the  record,  is  not  followed  by  the 
states.  In  Cook  County,  Illinois,  the  court  rules  per- 
mit the  master  to  rule  upon  the  admissibiltiy  of  evi- 
dence, and  he  has  power  to  exclude  evidence  (Cook 
County  Chan.  Rules),  but  it  is  considered  the  better 
practice  for  the  master  to  admit  evidence  subject  to 
the  objections  stated  (Gordon  v.  Reynolds,  114  111. 
118;  Ellwood  v.  Walter,  103  111.  App.  219);  and  this 
course  should  be  pursued  where  there  is  any  doubt 
about  the  competency  of  the  evidence.  The  review- 
ing court  is  concerned  chiefly  to  have  the  evidence  in 
chancery  causes  appear  in  the  record  for  review.  The 
doctrine  that  it  is  better  practice  to  admit  evidence 
suliject  to  objection  should  be  taken  to  mean  that  even 
if  the  evidence  is  ruled  by  the  master  or  chancellor 
to  be  inadmissible,  it  should  nevertheless,  upon  request, 
be  permitted  to  appear  in  the  record.  It  should  not 
be  taken  to  mean  that  the  master  or  the  chancellor 
should  omit  to  rule  upon  objections.  Rulings  are 
necessary  to  advise  lawyers  how  the  master  or  chan- 
cellor regards  the  evidence. 

In  Illinois  incompetent  testimony  should  be  ob- 
jected to,  lest  it  be  treated  as  competent,  in  the  absence 
of  objections  (Millard  v.  Millard,  221  111.  86;  which 
in  effect  overrules  Goelz  v.  Goelz,  157  111.  39). 

Testimony  in  chancery,  reduced  to  writing,  usually 
appears  in  the  record  under  one  or  more  of  the  follow- 
ing four  forms: 

1.    A  judge's  certificate  of  evidence  (White  v.  Mor- 


78 

rison,  11  111.  361;  Owen  v.  Ranstead,  22  111.  172): 
Testimony  orally  delivered  by  the  witness  himself  in 
open  conrt,  before  the  judge  who  passes  upon  it,  re- 
duced to  writing  and  verified  by  a  stenographer,  then 
certified  by  the  judge  as  being  a  complete  and  true 
record  of  the  proceedings  and  evidence  before  him, 
and  ordered  by  the  judge  to  he  made  a  part  of  the 
court  record  of  the  cause.  Such  testimony  is  neither 
subscribed  nor  verified  by  the  witness. 

Documents  may  be  introduced  with  or  without  such 
oral  testimony;  and  documents  may  constitute  the 
entire  subject-matter  of  the  certificate  of  evidence. 

2.  A  master's  report  or  certificate  of  evidence 
(White  V.  Morrison,  supra;  Owen  v.  Ranstead,  supra: 
Testimony  orally  and  publicly  delivered  by  the  witness 
himself  before  the  master  who  passes  upon  it,  re- 
duced to  writing  and  verified  by  a  stenographer, 
then  certified  by  the  master  as  being  a  complete  and 
true  record  of  the  proceedings  and  evidence  before 
him,  and  usually  included  in  the  master's  report 
or  certificate  to  the  court;  which  report  of  itself 
is  part  of  the  court  record  of  the  cause.  Testimony 
before  the  master  is  usually  read  over,  subscribed 
and  verified  by  the  witness,  and  is  loosely  termed 
a  deposition,  because  so  subscribed  and  verified.  The 
only  requirement  laid  down  in  court  rules  or  chan- 
cery practice  is  that  testimony  taken  viva  voce  before 
a  master  shall  be  reduced  to  writing  by  the  master  or 
his  clerk,  and  preserved  in  the  master's  office  for  use 
in  court,  if  necessary  (McClay  v.  Norris,  9  111.  386;  1 
Barb.  Ch.  Pr.  502;  Smith's  Ch.  Pr.  Vol.  2,  p.  147;  Rule 
69  Eng.  Ch.  Orders,  1828;  N.  Y.  Ch.  Rule  105;  U.  S. 
Eq.  Rule  81 ;  N.  J.  Ch.  Rules  44, 196 ;  Ch.  Rule  No.  4  gov- 
erning masters  in  Chicago).  There  seems  to  be  no  rule 
of  court  or  statute  requiring  testimony  before  the  mas- 
ter to  be  read  over  and  subscribed  and  verified  by  the 
witness,  as  is  the  case  with  depositions.  It  is  good  prac- 
tice in  New  York  state,  to  have  it  done  (1  Barb.  Ch. 
503;  Remsen  v.  Remsen,  2  Johns.  Ch.  393);  and  an 
Illinois  case  holds  such  testimony  should  be  subscribed 
by  the  witness  (Eisenmeyer  v.  Sauter,  77  111.  515). 


79 

DocTiments  may  be  introduced  with  or  without  such 
oral  testimony,  and  may  form  the  entire  subject-mat- 
ter of  a  master's  report  of  evidence;  as  for  example, 
the  trust  deed  and  notes  in  a  foreclosure  suit. 

Unless  the  master  is  directed  by  statute,  by  rule  of 
court,  or  by  the  order  of  reference,  to  report  the  evi- 
dence back  to  court,  he  need  not  do  so  (Hayes  v.  Ham- 
mond, 162  111.  135 ;  Schnadt  v.  Davis,  185  111.  476 ;  Prince 
V.  Cutler,  69  111.  267;  Pierce  v.  Cox,  120  111.  556). 

3.  A  deposition  (Jackson  v.  Sackett,  146  111.  646; 
Ryan  v.  Sanford,  133  111.  291) :  A  sort  of  secondary  evi- 
dence read  to  the  court  or  master  (AYeeks  on  Dep.  p.  6; 
Sexton  V.  Brock,  15  Ark.  345 ;  Haupt  v.  Heuuinger,  37 
Pa.  St.  138)  ;  being  testimony  under  oath,  subscribed 
(1  Barb.  285)  and  verified  by  the  witness,  and  de- 
livered out  of  court  and  according  to  statute,  or  un- 
der a  court's  special  commission,  before  a  com- 
missioner, an  examiner  or  a  notary  public,  and  by 
such  officer  reduced  to  writing,  verified,  certified 
and  returned  to  the  court,  for  the  purpose  of  being 
read  to  the  court  or  master  who  is  to  pass  upon 
the  evidence.  Loosely  speaking,  all  deposing  under 
oath,  whether  before  the  court,  master,  special  com- 
missioner, examiner,  notary,  or  in  an  affidavit,  is  called 
a  deposition;  but  in  a  strict  sense,  the  term  "deposi- 
tion" should  be  limited  as  in  this  paragraph  defined. 
It  is  totally  different  from  the  testimony  before  the 
court  or  before  a  master,  and  the  laws  regulating  dep- 
ositions have  no  application  to  such  oral  testimony 
before  the  court  or  before  the  master  (13  Cyc.  832; 
Troy  Iron  v.  Corning,  7  Blatchf.  16;  Mason  v.  Blair, 
33  111.  204;  Cox  v.  Pierce,  120  111.  556).  Statutes  and 
formal  rules  of  court,  diifering  in  every  jurisdiction, 
govern  the  taking  and  returning  of  depositions.  Oral 
evidence  in  the  master's  office  is  like  oral  evidence  be- 
fore the  judge  (Cox  v.  Pierce,  120  111.  556).  Docu- 
ments may  be  introduced  in  connection  with  depo- 
nent's testimony. 

4.  Affidavits:  Statements  made  out  of  court  with- 
out opportunity  for  cross-examintion  and  sworn  to  be- 
fore any  officer  empowered  to  take  oaths,  anciently 


80 

much  used  but  in  modern  times  limited  to  injunction 
cases,  and  a  few  other  ex  parte  motions.  In  Illinois 
affidavits  may  be  used  to  support  the  bill  or  the  an- 
swer upon  motions  to  dissolve  an  injunction  (111.  Stat. 
Injunc.  sec.  17) ;  and  upon  motions  for  a  continuance 
(111.  Stat.  Prac.  sec.  62-64,  also  Chan.  sec.  37).  They 
are  used  also  to  compel  the  production  of  books  and 
writings  (111.  Stat.  Evid.  sec.  9).  Illinois  students 
will  note  the  following  change  in  the  Practice  Act, 
permitting  oral  examinations  to  take  the  place  of 
affidavits : 

Affidavits,  or  oral  examination  (Sec.  86,  111.  Practice 
Act):  "Whenever  in  any  suit  or  proceeding  at  law 
or  in  equity  in  any  court  of  record  evidence  shall  be 
necessary  concerning  any  fact  which,  according  to  law 
and  the  practice  of  the  court,  may  now  be  supplied  by 
affidavit,  the  court  may,  in  its  discretion,  require  such 
evidence  to  be  presented,  wholly  or  in  part,  by  oral 
examination  of  the  witnesses  in  open  court,  or,  in 
equity  cases,  before  a  master  in  chancery,  upon  notice 
to  all  parties  not  in  default,  or  their  attorneys;  and 
whenever  such  evidence  is  presented  by  oral  examina- 
tion, an  adverse  party  shall  have  the  right  of  cross- 
examination.  Evidence  so  presented  may  be  preserved 
by  bill  of  exceptions  or  certificate  of  evidence.  Tliis 
section  shall  not  apply  to  applications  for  change  of 
venue." 

As  a  general  rule  affidavits  can  be  used  as  evidence 
before  the  master  only  when  authorized  by  the  order  of 
reference,  or  when  under  the  same  circumstances  a 
court  may  proceed  upon  affidavits  (1  Barb.  495).  Ac- 
cording to  the  federal  practice  and  also  in  Cook 
County,  Illinois,  depositions,  affidavits  and  documents 
previously  introduced  and  on  file  in  the  cause  may  be 
used  as  evidence  before  the  master  if  produced  before 
him  (U.  S.  Eq.  rule  80;  Cook  County  Chan,  rules). 

The  reasons  for  verifying  a  deposition: 

Testimony  heard  and  taken  by  others  than  the  chan- 
cellor or  master  who  judges  the  case  upon  it— in  other 
words,  depositions — should  be  as  well  authenticated  as 


81 

is  practicable,  and  therefore  should  be  verified  and  sub- 
scribed by  tlie  -witness  himself,  after  being  read  over  to 
him,  as  well  as  be  signed  and  vouched  for  by  the  notary 
or  examiner  who  writes  it  down.  In  taking  depositions, 
the  questions  and  answers  are  directly  written  down  in 
long  hand  or  upon  the  typewriter  machine,  so  that  the 
witness  may  subscribe  his  testimony  then  and  there, 
while  it  is  fresh  in  the  minds  of  his  hearers.  (2  Dan. 
585.)  Otherwise,  a  special  order  of  court  may  be  nec- 
essary to  bring  the  witness  back  on  another  day  to  sign ; 
and,  besides,  such  deferred  signing  practically  gives  to 
the  witness  power  to  refuse  to  sign  his  deposition  un- 
less certain  answers  are  changed  to  what  he  claims 
were,  or  were  meant  to  be,  his  answers.  In  taking- 
depositions,  stenography  should  not  be  used,  because 
it  divides  the  responsibility  and  displaces  the  certainty 
of  the  examiner  who  himself  writes  down  the  answers, 
or  sees  them  written  down;  and  stenograph}^,  requir- 
ing later  to  be  transcribed  upon  the  typewriter,  neces- 
sarily postpones  the  signing  by  the  witness  to  another 
day,  when  neither  stenographer  nor  examiner  may  be 
able  to  remember  the  answers.  Thus,  sinister  changes, 
under  the  guise  of  corrected  answers,  may  be  made. 
A  witness'  testimony  should  be  signed  each  day.  (1 
Barb.  282).  Witnesses  may  make  honest  mistakes,  but 
their  original  answers  should  stand  as  made.  If  they 
wish  to  correct  their  answers,  the  record  of  the  addi- 
tional evidence  should  show  the  explanation  for  mak- 
ing the  changes,  as  well  as  the  new  answers  given. 

The  modern  piecemeal  mode  of  taking  evidence  in 
chancery  by  depositions,  or,  in  the  master's  office,  upon 
continuance  after  continuance,  already  too  much  en- 
courages unscrupulous  parties  in  the  fabrication  of 
evidence.  Modern  chancery  cases  frequently  present 
a  suspicious  conflict  of  evidence  on  every  point.  There- 
fore, the  court  should  give  the  witness  as  little  op]3or- 
tunity  as  possible  to  change  answers  upon  a  subse- 
quent date.  Testimony  orally  delivered  before  the 
chancellor  or  master  and  taken  down  by  a  stenographer 
is  not  only  burdened  by  the  requirement  that  it  be  sub- 
sequently verified  and  subscribed  by  the  witness  (as  if 


82 

it  were  a  deposition)  but  is  also  subjected  to  risk  of 
dishonest  changes.  Such  verification  and  subscrip- 
tion may  be  waived  if  the  testimony  is  properly 
vouched  for  or  certified  by  the  master  (Dorn  v.  Ross, 
177  111.  228).  But,  as  before  remarked,  it  is  the  pre- 
vailing practice  to  have  testimony  orally  delivered  be- 
fore the  master  verified  and  signed  by  the  witness.     ■ 

EVIDENCE    IN    THE    MASTER'S    OFFICE    IN    COOK    COUNTY, 

ILLINOIS. 

The  master  is  required  by  the  Cook  Count}",  Illinois, 
rules  of  the  Superior  and  Circuit  Courts,  as  soon  as 
practicable  to  fix  a  day  to  proceed  with  the  taking  of 
testimony  or  evidence  on  the  reference.  Either  party 
may  move  the  master  to  fix  a  day.  On  the  day  so 
fixed,  the  master  is  required  to  proceed  with  the  taking 
of  testimony  or  evidence ;  and  on  the  day  so  fixed  the 
master,  in  his  discretion,  may  fix  a  day  within  which 
the  complainant  shall  close  his  proofs;  which  time 
he  may,  in  his  discretion,  for  good  cause  shown,  extend 
for  such  reasonable  time  as  justice  may  require.  A 
motion  on  the  part  of  the  defendant  to  the  effect  that 
complainant  close  his  proof  within  a  certain  time  is 
premature  if  made  before  the  day  fixed  by  the  master 
for  beginning  the  taking  of  testimony. 

As  soon  as  the  complainant  has  closed  his  proofs, 
the  master  is  required  by  the  rules  to  fix  a  time  within 
which  the  defendant  shall  close  his  proofs  and  the 
complainant  his  proofs  in  rebuttal,  and  in  his  discre- 
tion, for  good  cause,  the  master  may  extend  the  time 
for  such  reasonable  time  as  justice  may  require.  As 
a  matter  of  right,  therefore,  the  complainant,  when 
he  closes  his  proofs,  can  move  the  master  to  fix  a  time 
within  which  the  defendant  shall  close  his  proofs ;  but 
the  rules  require  the  master  at  the  same  time  also  to 
fix  the  time  for  the  complainant  to  close  his  proofs 
in  rebuttal.  In  case  the  parties  shall  not  close  their 
proofs  within  the  time  limited  by  the  master,  the  mas- 
ter is  required  b}^  the  rules  to  proceed  to  make  up  his 
report  upon  the  testimony  and  evidence  that  may  have 
been  submitted  to  him,  without  waiting  for  further 


83 

evidence  or  testimony  from  the  party  so  failing  to 
close  his  proofs  within  the  time  limited. 

It  is  the  better  practice  to  have  the  originals  of 
notices  respecting  hearings,  motions  and  rulings 
signed  by  the  master  in  chancery,  though  caused  to 
be  served  by  the  solicitors  of  the  party.  Such  orig- 
inal notices  should  be  filed  with  the  master  as  a  part 
of  the  court  files,  at  the  next  hearing,  in  order  that 
they  may  form  a  part  of  the  record  of  proceedings 
and  evidence  before  the  master. 

In  Illinois,  under  Section  38  of  the  Statute  on  Evi- 
dence, chancery  courts  in  cases  not  referred  to  a  mas- 
ter, are  compelled  to  receive  oral  evidence  upon  the 
trial  if  either  party  desires  it  (Owen  v.  Ranstead,  22 
111.  171).  Under  the  old  practice,  which  still  also  ob- 
tains in  Illinois  and  in  most  other  jurisdictions,  evi- 
dence in  chancery  was  and  is  taken  out  of  court  usually 
in  the  form  of  depositions. 

Upon  a  general  reference  to  the  master  authorizing 
the  master  to  take  and  report  the  evidence,  together 
with  his  conclusions  of  fact  and  law  thereon,  proper 
practice  requires  that  all  the  evidence  in  the  case  be 
introduced  on  the  hearing  before  the  master.  A  lead- 
ing case  to  this  effect  is  Cox  v.  Pierce,  120  111.  556. 

Section  38  of  Chapter  51,  Illinois  Statutes,  entitled 
"Evidence  and  Depositions,"  provides  that: 

"On  the  trial  of  every  suit  in  chancery,  oral  testi- 
mony shall  be  taken  when  desired  by  either  party." 
Section  39  of  Chapter  22  provides  that : 
"Upon  default  or  upon  issue  joined,  the  court  may 
refer  the  cause  to  a  master  in  chancery  to  report  the 
evidence,  with  or  without  his  conclusions  thereon." 
The  following  is  quoted  from  Cox  v.  Pierce : 
"These  sections  must,  then,  be  construed  as  parts 
of  a  single  system,  and  so  as  to  give  effect  to  both. 
We  cannot  suppose  that  the  legislature  intended  to 
confer  upon  the  circuit  courts  so  useless  a  power  as 
that  of  referring  causes  to  masters  in  chancer}'  to 
take  and  report  the  evidence,  together  with  their  con- 
clusions   thereon,    when    such    evidence    and    report 
might  be  entirely  disregarded  by  either  party,   and 
the  court  be  required  to  again  listen  to  all  the  evidence 


84 

detailed  orally  by  witnesses.  The  words  'the  evi- 
dence in  the  case'  unquestionably  mean  all  the  evi- 
dence in  the  case,  and  the  only  purpose  in  allowing 
it  to  be  referred  to  the  master  to  take  it  and  report  it, 
with  or  without  his  conclusions  thereon,  to  the  court, 
is  to  lighten  to  that  extent  the  labors  of  the  court. 
It  must  therefore  have  been  intended  that  orrtZevi^e^^ce^ 
instead  of  depositions,  shall  be  taken  on  the  trial  of 
every  suit  in  chancery,  when  desired  by  either  party; 
but  when  it  is  referred  to  the  master  to  take  and 
report  the  evidence  in  the  case,  and  his  conclusions 
thereon,  all  the  evidence,  whether  in  depositions  or 
documents,  or  to  be  detailed  by  the  mouths  of  living 
witnesses,  must  be  introduced  before  him;  and  when 
thus  introduced  and  afterwards  properly  reported  by 
the  master  to  the  court,  it  is,  in  the  language  of  Section 
38,  Chapter  51,  supra,  'taken  on  the  trial.'  And  on 
the  assumption  that  this  is  the  correct  construction 
of  the  sections,  we  held  in  Prince  v.  Cutler,  69  111.  267, 
that  upon  hearing  exceptions  to  the  master's  report, 
it  is  not  competent  to  hear  any  evidence  that  was  not 
before  the  master  when  he  made  his  report." 

Evidence  cannot  be  introduced  on  the  hearing  of 
exceptions  to  the  master's  report  which  was  not  intro- 
duced before  the  master  (Cox  v.  Pierce,  120  111.  556; 
Smith  V.  Billings,  170  111.  543 ;  Brueggestradt  v.  Lud- 
wig,  184  111.  36;  Wall  v.  Stapleton,  177  111.  360). 

In  the  case  last  cited,  althongli  the  chancellor  ad- 
mitted certain  evidence  in  open  court  after  the  hear- 
ing before  the  master,  tlie  Supreme  Court  decided 
that  the  evidence  so  admitted  was  merely  cumulative 
and  was  not  a  cause  for  reversal,  inasmuch  as  the 
decree  was  clearly  right  on  the  evidence  before  the 
master,  aside  from  the  additional  cumulative  evidence. 

The  case  of  Henderson  v.  Harness,  184  111.  527,  is 
not  in  point.  In  that  case  it  does  not  appear  that 
the  chancellor  heard  any  evidence  in  addition  to  the 
evidence  heard  by  the  master. 

Parties  must  appear  before  the  master  and  take 
their  proofs  upon  an  order  of  reference.  They  cannot 
omit  to  do  this  and  offer  proof  on  the  hearing  before 
the  chancellor  (Gould  v.  Banking  Co.,  36  111.  App.  390). 

If  the  chancellor  wishes  more  evidence  to  be  taken, 


85 

after  the  master's  report  is  on  file,  the  cause  should 
be  re-referred  to  the  master  for  that  purpose  (Wall 
V.  Stapleton,  177  111.  357.  See  111.  Cyc.  Dig.,  ''Master 
in  Chan."). 

Under  the  old  chancery  practice  as  it  prevailed  be- 
fore statutes  permitted  oral  evidence  in  chancery  suits, 
and  as  it  still  prevails  in  most  jurisdictions,  no  viva 
voce  evidence  was  permitted  at  the  hearing  for  decree, 
except  as  follows : 

Exhibits,  deeds  and  other  written  instruments  relat- 
ing to  the  cause  may  be  produced  and  proved  viva  voce 
on  the  hearing  for  decree  where  the  party  using  them 
has  omitted  to  establish  their  genuineness  before  the 
officer  taking  the  proofs  (1  Barb.  308;  Holdridge  v. 
Bailey,  5  111.  125;  McClay  v.  Norris,  9  111.  370).  A  sat- 
isfactory excuse  must  be  given  for  not  having  made 
proof  in  the  usual  way  (Cosequa  v.  Fanning,  2  Johns. 
Ch.  K  Y.  481). 

Whether  in  Illinois  the  case  of  Holdridge  v.  Bailey, 
is  overruled  by  the  case  of  Cox  v.  Pierce,  is  doubtful  in 
the  writer's  opinion. 

Evidence  heard  and  taken  by  one  master  cannot  in 
Illinois  be  considered  by  another  master,  but  may  be 
considered  by  the  court  (Coel  v.  Glos,  232  111.  147). 
Therefore,  where  the  testimony  in  a  cause  has  been 
taken  by  different  masters,  each  should  report  only 
for  the  part  heard  by  him.  (McMahon  v.  Rowley,  238 
111.  31). 

Under  an  order  of  reference  to  take  proofs  and  re- 
port the  same  with  his  conclusions,  the  master  must 
cause  the  witnesses  to  be  brought  before  him  and  ex- 
amined in  his  presence,  and  he  must  cause  the  testi- 
mony to  be  reduced  to  writing  and  embody  the  same 
in  his  report  (Schnadt  v.  Davis,  185  111.  476). 

OBJECTIONS   TO   EVIDENCE    IN    COOK   COUNTY. 

Under  the  rules  governing  masters  in  Cook  county, 
Illinois,  objections  to  the  master's  rulings  on  evidence 
should  be  Ijrought  before  the  chancellor  after  the  evi- 
dence and  testimony  before  the  master  is  closed  and 


86 

before  the  master  makes  his  report.    Note  the  follow- 
ing case: 

"Notwithstanding  this  ruling  of  the  master  (rejecting 
certain  testimony),  counsel  made  no  application  to  the 
court  to  require  the  master  to  admit  the  evidence  in 
question,  but  without  the  rejected  evidence  allowed  the 
master  to  proceed  to  make  his  report  and  excepted  be- 
fore the  chancellor  to  the  ruling  of  the  master  in  reject- 
ing the  evidence.  This  was  not,  in  our  opinion,  the 
proper  practice  to  pursue,  but  counsel,  before  the  snak- 
ing of  the  master's  report  (according  to  chancery 
rules  of  court),  should  have  taken  the  question  of  the 
admissibility  of  this  evidence  before  the  chancellor  and 
had  his  rulings  thereon ;  when,  if  the  contention  should 
have  been  sustained  by  the  court,  the  master  would 
then  have  received  the  evidence  and  passed  upon  it  in 
making  his  report.  We  think  that  counsel  should  not 
be  permitted  thus  to  speculate  upon  the  findings  of  the 
master  and  the  chancellor,  and  should  now  be  precluded 
from  claiming  that  there  was  error  in  the  master's 
ruling."  (Dickinson  v.  Torrey,  91  111.  App.  304,  citing 
Brueggestradt  v.  Ludwig,  184  111.  28-37 ;  Glos  v.  Hoban, 
212  111.  222).  In  other  jurisdictions  the  general  prac- 
tice is  to  seek  the  oi^inion  of  the  court  on  the  master's 
rulings  upon  evidence  when  the  master  has  made  his 
report  (1  Barb.  484). 

NATURE   OF  HEARING  BEFORE   MASTER,   IN   ILLINOIS. 

Upon  the  hearing  before  the  master  in  chancery, 
"the  parties  have  the  same  right  to  be  heard,  by  them- 
selves or  by  counsel,  to  introduce  evidence,  cross-ex- 
amine witnesses,  and  to  take  the  various  steps  author- 
ized by  law,  as  if  the  hearing  was  before  the  chancellor 
instead  of  the  master"  (U.  M.  Life  Ins.  Co.  v.  Slee, 
123  111.  94). 

The  party  is  entitled  to  be  present  and  listen  to  the 
testimony  of  the  witness  as  it  is  detailed  by  him  in 
chief,  and  then,  or  as  soon  thereafter  as  convenience 
will  admit,  to  cross-examine  him;  and  it  does  not  cure 
the  error  of  denying  this  opportunity  to  allow  him, 


87 

at  some  subsequent  day,  to  have  the  witness  brought 
before  the  master  in  chancery  for  his  cross-exam- 
ination. Notice  is  important  that  a  party  shall  be  al- 
lowed an  opportunity  to  confront  witnesses  who  may 
testify  against  him  while  giving  their  hostile  evidence 
(U.  M.  Life  Ins.  Co.  v.  Slee,  123  111.  94). 

PRODUCTION  OP  BOOKS  AND  WRITINGS,  PROOF  OF  STAT- 
UTES, OF  RECORDS  OF  COURTS  AND  CORPORATIONS. 

The  statutes  of  the  various  states  differ  but  slightly 
as  to  producing  books  and  writings  in  evidence,  and 
as  to  proving  the  statutes  or  the  court  decisions  of 
the  state,  or  as  to  proving  the  records  of  courts  or  of 
municipal  and  private  corporations.  Much  trouble 
is  caused  by  ignorance  of  such  statutes.  A  brief  re- 
cital of  the  substance  of  the  Illinois  statutes  will  serve 
to  call  students'  attention  to  the  statutes  of  their  own 
states. 

Production  of  Books  and  Writings:  The  courts  of 
Illinois  have  power,  upon  motion,  and  upon  good  and 
sufficient  cause,  shown  by  affidavit  that  certain  books 
or  writings  contain  evidence  pertinent  and  material 
to  the  issue,  and  upon  reasonable  notice  to  produce 
them,  to  require  either  party  to  produce  such  books 
or  writings  in  their  possession  or  power  (111.  Stat. 
Evid.  Sec.  9;  1st.  Nat.  Bank  v.  Mansfield,  48  111.  494). 
Where  books  are  to  be  produced,  the  defendant  may 
seal  up  and  cancel  all  such  parts  as,  according  to  his 
affidavit  previously  made  and  filed,  do  not  relate  to 
the  matters  in  question  (Pynchon  v.  Day,  118  III. 
9).  Notice  to  the  adverse  party  to  produce  papers 
in  his  custody  entitles  party  giving  notice  to  no  ad- 
vantage on  their  non-production,  except  the  right  to 
introduce  secondary  evidence  (Iloagland  v.  G.  W. 
Tel.  Co.,  30  111.  App.  304).  Abuse  of  the  right  of 
inspection  may  be  prevented  by  the  terms  of  the  order 
requiring  production;  and  in  framing  the  same  the 
court  may  exercise  a  discretion  for  the  prevention 
of  annoyance  or  the  indulgence  of  impertinent  curi- 


osity  (Eigdon  v.  Conley,  31  111.  App.  630).  This  stat- 
ute does  not  give  the  court  power  to  take  the  books 
and  papers  of  the  party  and  impound  them  with  an 
officer  of  the  court  for  inspection  or  examination  out 
of  the  presence  of  the  court  (Lester  v.  P.,  150  III. 
408,  1894).  The  statute  and  the  cases  treat  only  of 
the  power  to  require  parties  to  produce.  The  writer 
doubts  the  power  of  courts  to  deprive  one  not  a  party, 
of  his  own  property  in  the  shape  of  books  and  writ- 
ings. 

Printed  Statutes:    The  statute  books  purporting  to 

be  printed  under  the  authority  of  the  United  States 

or  of  any  state  or  territory,  are  evidence  in  all  courts 

'in  Illinois,   of  the  acts   therein  contained    (111.   Stat. 

Evid.  Sec.  10). 

Reported  Decisions  of  Courts:  The  books  of  re- 
ports of  decisions  of  the  Supreme  Court  and  other 
courts  of  the  United  States,  and  of  the  several  states 
and  territories  thereof,  purporting  to  be  published  by 
authority,  may  be  read  in  Illinois  as  evidence  of  the 
decisions  of  such  courts  (111.  Stat.  Evid.  Sec.  12). 

Court  Records — Certified  Copies:  In  Illinois  the 
papers,  entries  and  records  of  courts  may  be  proved 
by  a  copy,  certified  under  the  hand  of  the  clerk  of  the 
court  having  the  custody  thereof,  and  the  seal  of  the 
court,  or  by  the  judge  of  the  court,  if  there  be  no  clerk 
(111.  Stat.  Evid.  Sec.  13). 

Records  of  Municipal  Corporations — C ertified 
Copies:  In  Illinois  the  papers,  entries,  records  and 
ordinances  of  any  city,  village,  town  or  county  may  be 
proved  by  a  copy,  certified  under  the  hand  of  the  clerk 
or  the  keeper  thereof,  and  the  corporate  seal,  if  there 
be  any;  if  not,  under  his  hand  and  private  seal  (111. 
Stat.  Evid.  Sec.  14). 

Records  of  Other  Corporations — Certified  Copies: 
In  Illinois  the  papers,  entries  and  records  of  any  cor- 
poration may  be  proved  by  a  copy,  certified  under  the 
hand  of  the  secretary,  clerk,  cashier  or  other  keeper 
of  the  same.  If  the  corporation  or  incorporated  as- 
sociation has  a  seal,  the  same  shall  be  affixed  to  such 
certificate  (111.  Stat.  Evid.  Sec.  15). 


89 

Form  of  Certificate:  The  certificate  under  the  three 
preceding  paragraphs  should  state  that  the  person 
certifying  is  the  keeper  or  custodian  of  the  records, 
entries  or  papers,  and  whether  or  not  there  be  a  seal 
(111.  Stat.  Evid.  Sec.  16). 

Sivorn  Copies:  Any  such  papers,  entries,  records 
and  ordinances  may  be  proved  by  copies  examined 
and  sworn  to  by  credible  witnesses  (111.  Stat.  Evid. 
Sec.  18). 

WITNESSES. 

Witnesses  living  within  the  jurisdiction  wherein 
the  cause  is  pending  may  be  subpoenaed  to  testify  be- 
fore the  court,  before  a  commissioner  or  examiner  ap- 
pointed to  take  testimony,  or  before  a  master  to  whom 
a  reference  has  been  made.  The  clerk  of  the  court  in 
which  the  cause  is  being  tried,  or  the  master  or  other 
officer  taking  testimony  or  taking  depositions,  will, 
upon  request  by  either  party,  issue  a  subpoena  for  the 
purpose  (111.  Stat.  Prac.  sec.  22;  111.  Stat.  Evid.  sec. 
36). 

In  the  courts  of  the  United  States,  a  witness  cannot 
be  deemed  guilty  of  contempt  for  not  obeying  a  sub- 
poena unless  his  fee  for  going  and  returning  and  for 
one  day's  attendance  is  paid  or  tendered  him  at  the 
time  the  subpoena  is  served  (U.  S.  Eq.  Rule  78;  Re- 
vised Statutes,  Sec.  870). 

In  Illinois  the  statute  is  as  follows : 

(111.  Stat.  Fees,  Sec.  47).  "Every  witness  attend- 
ing in  his  own  county  upon  trials  in  the  courts  of  rec- 
ord shall  be  entitled  to  receive  the  sum  of  one  dol- 
lar for  each  day's  attendance  and  five  cents  per  mile 
each  way  for  necessary  travel.  For  attending  in  a 
foreign  county,  going  and  returning,  accounting  twenty 
miles  for  each  day's  travel,  for  each  way  one  dollar. 
Every  person  attending  for  the  purpose  of  having  his 
deposition  taken,  one  dollar,  and  the  same  mileage 
as  provided  in  this  section  for  witnesses  in  courts  of 
record :  Provided,  no  allowance  or  charge  shall  be 
made  for  the  attendance  of  witnesses  aforesaid  unless 
the  witness  shall  make  affidavit  of  the  number  of  days 


90 

lie  or  she  actually  attended,  and  tliat  such  attendance 
was  at  the  instance  of  one  or  both  of  the  parties  or  his 
attorney."     (See  also  111.  Stat.  Evid.  Sec.  37). 

Subpoena  duces  tecum.  Either  party  to  a  suit  may 
obtain  from  the  clerk  of  the  court,  upon  proper  order 
of  the  court,  a  subpoena  duces  tecum  requiring  the  wit- 
ness therein  named  to  appear  and  testify  before  the 
court,  commissioner  or  master,  at  the  time  and  place 
named  in  the  subpoena,  and  to  bring  with  him  and  proi 
duce  before  said  court,  commissioner  or  master  any 
paper,  writing,  instrument,  book  or  document  supposed 
to  be  in  his  possession,  the  same  to  be  described  in  said 
subpoena;  provided,  it  is  made  to  appear  to  the  court, 
by  affidavit  or  otherwise,  that  there  is  reason  to  believe 
that  said  writing,  paper,  instrument,  book  or  docu- 
ment is  in  the  possession  or  power  of  said  witness,  and 
if  produced  would  be  competent  evidence  on  behalf 
of  the  party  applying  for  the  order.  There  is  no  rea- 
son for  thinking  that  a  person  not  a  party  to  the  suit 
can  be  deprived  of  his  own  property  by  means  of  sub- 
poena duces  tecum.     (See,  production  of  documents.) 

In  Illinois  the  master  has  statutory  power  to  compel 
the  attendance  of  witnesses,  and  upon  an  order  of  ref- 
erence containing  proper  directions  to  the  etTect,  he 
may,  by  a  master's  subpoena,  compel  the  production 
of  books  and  papers.  (See  Forms,  Order  of  refer- 
ence). 

In  Illinois  (111.  Stat.  Oaths  and  Affirmations;  1  Barb. 
Chan.  281)  the  form  of  oath  or  affirmation  adminis- 
tered to  witnesses  is  as  follows : 

(Witness  is  first  directed  to  lift  up  his  hand.)  "You 
do  solemnly,  sincerely  and  truly  swear  by  the  ever  liv- 
ing God  that  you  will  make  true  answers  to  all  ques- 
tions which  shall  be  put  to  you  upon  your  examina- 
tion in  this  cause,  and  therein  you  will  speak  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  so  help  you 
God." 

If  the  witness  has  scruples  against  taking  the  oath, 
his  hand  is  not  lifted  up,  and  he  is  affirmed  as  fol- 
lows: 

''You  do  solemnly,  sincerely  and  truly  declare  and 


91 

affirm  that  you  will  make  true  answers  to  all  questions 
which  shall  be  put  to  you  upon  your  examination  in 
this  cause,  and  therein  you  will  speak  the  truth,  the 
whole  truth  and  nothing  but  the  truth." 

If  a  witness  does  not  understand  English,  an  inter- 
preter may  be  sworn  to  interpret  truly,  and  the  dep- 
osition is  taken  down  from  the  interpretation  in  Eng- 
lish, The  oath  administered  to  the  interpreter  is  as 
follows : 

"You  do  solemnly,  sincerely  and  truly  swear  by  the 
ever  living  God  that  you  will  truly  and  faithfully  inter- 
pret the  oath  to  be  administered  and  the  questions  to 

be  put  to a  witness  now  to  be  examined,  out  of 

the  English  language  into  the language,  and 

that  you  will  truly  and  faithfully  interpret  the  an- 
swers thereto  out  of  the language  into  the 

English  language"  (1  Barb.  Chan.  285). 

THE  HEARING  IN  COURT.      . 

On  the  hearing,  the  complainant's  bill  is  first  read 
or  stated  in  substance;  then  the  defendant's  answer; 
after  which  the  matters  in  issue  are  stated  to  the  court, 
together  with  the  equitable  points  of  law  arising  there- 
on. Then  the  complainant's  evidence  is  read  to  the 
court,  and  after  this  the  defendant 's  evidence,  and  then 
again  the  complainant's  evidence  in  rebuttal.  If  the 
cause  is  on  hearing  upon  a  master's  report,  the  evi- 
dence is  not  read,  but  the  master's  findings  are  read, 
also  the  exceptions  thereto,  if  any  were  filed.  After 
this  follows  the  argument  of  the  complainant's  solic- 
itor, which  is  followed  by  that  of  the  defendant's  solic- 
itor, after  which  the  complainant's  solicitor  may  reply 
in  conclusion. 

"Preparatory  to  submitting  a  cause  to  the  court  for 
hearing  upon  the  pleadings  and  evidence,  if  the  same 
are  voluminous,  proper  abstracts  thereof,  with  in- 
dexes thereto,  should  be  prepared.  The  evidence  bear- 
ing upon  each  issue  or  distinct  question  of  fact  should, 
so  far  as  possible,  be  grouped  together.  There  is  no 
other  step  in  the  preparation  and  submission  of  a  cause 
in  which  care,  discrimination  and  thoroughness  on  the 


92 

part  of  counsel,  are  of  greater  moment  than  in  bring- 
ing together  in  logical  and  lucid  form  and  sequence,  the 
vital  issues  of  fact  in  the  case  and  the  evidence  ap- 
plicable thereto"  (Judge  Shiras,  Eq.  Pr.)  The  Cir- 
cuit Court  of  Cook  County,  Illinois,  chancery  rules 
also  require  such  abstracts  upon  request  of  the  chan- 
cellor. The  Superior  Court  rules  require  such  ab- 
stracts if  the  evidence  is  by  deposition,  or  was  taken 
before  a  master. 

"After  taking  evidence  is  closed  and  before  final 
rendition  of  decree,  if  a  party  desires  to  present  any 
new  matter  in  the  way  of  issue  or  evidence,  he  must 
apply  for  leave  to  the  court  by  petition  setting  up  the 
new  matter  or  issue,  so  that  its  relevancy  and  materi- 
ality may  be  judged,  and  asking  leave  to  introduce 
further  evidence,  or  to  amend  the  pleadings,  and  also 
showing  the  reasons  why  the  party  was  not  at  fault  in 
not  earlier  presenting  the  matter"  (Shiras,  Eq.  Prac). 

DECREES  AND  ORDERS. 

A  decree  is  the  decision  and  mandate  of  a  court  of 
equity  upon  issues  properly  presented  and  heard  by 
the  court.    Decrees  are  final  or  interlocutory. 

"When  the  decision  of  the  court  is  made  known,  a 
decree  in  accordance  therewith  should  be  prepared 
and  be  submitted  to  the  judge  for  signature,  and  when 
signed  it  must  be  filed  with  the  clerk  for  entry.  It 
should  clearly  set  forth  the  exact  findings  of  fact  as 
set  forth  in  the  pleadings  and  evidence,  and  the  find- 
ings of  law  by  the  court  upon  the  issue  or  issues  passed 
upon;  and  if  by  such  judgment  the  defendant  is  re- 
quired to  do  or  refrain  from  doing  any  act,  the  same 
should  he  set  forth  clearly  in  the  mandatory  part  of 
the  decree;  and,  in  the  case  of  performance,  the  time, 
mode  and  condition  thereof  should  be  made  plain" 
(Shiras  Eq.  Prac). 

It  is  the  duty  of  a  solicitor  obtaining  orders  and  de- 
crees in  chancery  to  prepare  them  and  see  that  they 
are  recorded  (Schlesinger  v.  Allen,  69  111.  Apx^.  137). 
He  serves  upon  the  opposite  solicitor  a  copy  of  the 


93 

order  or  decree,witli  notice  of  tlie  time  and  place  wlien 
and  where  lie  will  apply  to  the  court  to  have  the 
order  or  decree  settled.  If  it  is  satisfactory  oppo- 
nent's solicitor  nsnally  indicates,  by  an  endorsement  on 
the  draft,  his  consent.  If  it  is  not  satisfactory,  he 
proposes  amendments  and  appears  before  the  court, 
and  the  court  settles  the  decree.  When  a  mistake  or 
clerical  error  has  been  made  in  a  decree,  it  may  be 
corrected  by  the  court,  upon  motion  or  petition,  made 
after  entry  and  before  enrollment  (Bates  v.  Garrison, 
Har.  Ch.  221).  The  party  making  the  application 
must  show  that  he  has  been  injured  by  the  error  or 
mistake  (Yarnell  v.  Brown,  170  111.  362;  Russell  v. 
Wait,  Walk.  Ch.  31). 

FINAL  AND   INTERLOCUTORY  DECREES. 

A  decree  which  finally  disposes  of  the  rights  of 
the  parties  upon  the  merits  of  any  branch  of  the  con- 
troversy is  final;  but  if  the  merits  are  not  passed 
upon,  and  the  order  is  made  simply  to  take  an  addi- 
tional step  towards  a  final  determination  upon  the 
merits,  it  is  an  interlocutory  decree. 

The  distinction  is  important,  because  the  right  to 
appeal  from  a  decree  is  statutory  and  must  be  strictly 
followed,  and  the  statute  usually  restricts  the  right  to 
appeal  to  final  decrees. 

Any  decree  which  divests  a  party  of  a  pre-existing 
legal  right  is  called  a  final  decree. 

Judgment  sustaining  a  demurrer  without  dismissing 
the  bill  is  not  final  but  interlocutorv  (Kna]ip  v.  Mar- 
shall, 26  111.  63;  Campbell  v.  Powers,  139  111.  135).  A 
decree  ordering  an  act  to  be  done  before  the  decree  can 
be  effectual  is  an  interlocutory  decree  (Haves  v.  Mavs, 
1  J.  J.  Marsh,  497). 

If  the  decree  accomplishes  the  purposes  of  the 
suit  by  determining  litigated  matters  or  questions 
included  within  the  issues,  and,  without  further  ju- 
dicial action,  fixes  rights  and  liabilities  of  parties 
— as  by  settling  the  title  or  right  of  possession  to 
property,  or  directing  performance  of  a  specific  act, 
or   directing   the   sale   of  property  upon   foreclosure 


94 

of  mortgages  or  other  liens — in  tliese  and  like  cases  tlie 
decree  is  deemed  to  be  final  for  the  purposes  of  appeal, 
although  the  trial  court  may  continue  its  jurisdiction 
over  the  case  for  ministerial  purposes,  such  as  making 
sale  of  property  or  taking  an  account  rendered  neces- 
sary by  the  terms  of  the  decree,  or  otherwise  execut- 
ing the  decree  rendered.  {In  re  Farmers  Loan  &  Trust 
Co.,  129  U.  S.  206 ;  Central  Trust  Co.  v.  Grant  Locomo- 
tive Works,  135  U.  S.  207 ;  Wheeling  &  B.  Bridge  Co. 
V.  Wheeling  Bridge  Co.,  138  U.  S.  287;  Fowler  v. 
Hamill,  139  U.  S.  549;  Hill  v.  Chicago  E.  R.  Co.,  140 
U.  S.  52;  Bank  v.  Sheffey,  140  U.  S.  445.) 

If,  however,  the  decree,  although  in  form  final,  can- 
not be  immediately  carried  into  effect,  and  does  not 
execute  itself,  but  to  that  end  needs  further  judicial 
action  on  the  part  of  the  court,  it  is  deemed  to  be  inter- 
locutory only,  and  therefore  an  appeal  cannot  be  taken 
therefrom  (Meagher  v.  Thresher  Co.,  145  U.  S.  608; 
McGourkey  v.  Toledo  &  0.  C.  K.  Co.,  146  U.  S.  536; 
Luxton  V.  North  River  Bridge  Co..  147  U.  S.  337 ;  Ho- 
horst  V.  Hamburg  Am.  Packet  Co.,  148  U.  S.  262; 
Latta  V.  Kilbourn,  150  U.  S.  524). 

Until  final  decree,  all  previously  rendered  decretal 
orders  are  before  the  court  for  review,  and  may  be 
modified  or  vacated  as  circumstances  may  require 
(Jefifery  v.  Robbins,  167  111.  375). 

Appeals  from  Certain  Interlocutory  Decrees:  The 
Illinois  Practice  Act,  Section  123,  provides  that 
"whenever  an  interlocutory  order  or  decree  is  en- 
tered in  any  suit  pending  in  any  court  of  this  state, 
granting  an  injunction,  or  overruling  a  motion  to  dis- 
solve the  same,  or  enlarging  the  scope  of  an  injunc- 
tion order,  or  appointing  a  receiver,  or  giving  other 
or  further  powers  or  property  to  a  receiver  already 
appointed,  an  appeal  may  be  taken  from  such  inter- 
locutory order  or  decree  to  the  appellate  court  of  the 
district  wherein  is  situated  the  court  granting  such  in- 
terlocutorv  order  or  decree." 


95 


PRO  CONFESSO  DECREES. 


If  a  defendant,  having  been  duly  served,  fails  to 
enter  an  appearance  at  the  proper  time,  or,  having  ap- 
peared, fails  to  file  a  plea,  demurrer  or  answer  to  the 
bill  by  the  proper  day,  the  complainant  may  have  the 
court  enter  an  order  finding  such  defendant  to  be  in 
default  and  that  the  bill  be  taken  2^10  coufesso. 

A  default  should  not  be  taken  against  defendants 
served  by  publication  without  return  of  summons  "not 
found"  (Cost  V.  Rose,  17  111.  276). 

In  Cook  County,  Illinois,  chancery  rule  2  provides 
that  on  and  after  the  third  day  of  each  term,  defaults 
may  be  entered  as  to  defendants  properly  served  who 
have  filed  no  appearance  in  writing. 

Thereupon  the  cause  may  proceed  ex  parte,  and  de- 
cree therein  may  be  entered ;  or  the  complainant,  if  he 
requires  an  answer  to  enable  him  to  obtain  a  proper 
decree,  may  procure  process  of  attachment  against 
such  defendant,  upon  which  process  the  defendant 
may  be  arrested  and  held  until  he  fully  complies  with 
the  order  of  the  court  or  judge  as  to  pleading  to  or 
answering  said  bill  (U.  S.  Eq.  Rules  18,  19;  Thomson 
V.  Wooter,  114  U.  S.  104).  A  decree  pro  coufesso  is 
also  known  as  a  "default  decree,"  or  "decree  by  de- 
fault." 

Decree  Pro  Confesso  in  Illinois  under  Chancery  Act: 
"Every  defendant  who  shall  be  summoned,  served  with 
a  copy  of  the  bill  or  petition,  or  notified  as  required  in 
this  Act,  shall  be  held  to  except,  demur,  plead  or  an- 
swer on  the  return  day  of  the  summons ;  or,  if  the  sum- 
mons is  not  served  ten  days  before  the  first  day  of  the 
temi  at  which  it  is  returnable,  by  the  first  day  of  the 
next  term ;  or,  in  case  of  service  by  copy  of  the  bill  or 
by  notice,  at  the  expiration  of  the  time  req,uired  to  be 
given,  or  within  such  further  time  as  may  be  granted 
by  the  court;  or,  in  default  thereof,  the  bill  may  be 
taken  as  confessed"  (111.  Stat.  Chan.  Sec.  16). 

The  Illinois  Practice  Act  permits  the  court,  on  the 
appearance  of  the  defendant,  to  allow  such  time  to 
plead  as  may  be  deemed  reasonable  or  necessary  (111. 


96 

Stat.  Prac.  Sec.  44).  Rule  I  of  the  Cook  County  chan- 
cery courts,  upon  entry  of  appearance,  allows  defend- 
ants twenty  days  after  the  first  day  of  the  appearance 
term  to  except,  plead,  demur  or  answer. 

Neither  default  nor  decree  pro  confesso  can  be  en- 
tered against  an  infant  (Chaffin  v.  Kimball  Heirs,  23 
111.  36). 

A  bill  cannot  be  taken  as  confessed  against  minor  de- 
fendants (Rhoads  v.  Rlioads,  43  111.  239).  In  such 
case  the  evidence  in  the  record  must  sustain  the  de- 
cree (Seller  v.  Schaefer,  40  111.  App.  74;  Waugli  v. 
Bobbins,  33  111.  181). 

Where  bill  praying  an  account  is  taken  as  confessed, 
the  defendant  who  is  not  in  default  for  want  of  ap- 
pearance, must  be  given  notice  of  the  reference  to  the 
master,  the  report  of  the  master,  and  of  the  decree 
(Acme  Copying  Co.  v.  McLure,  41  111.  App.  397). 

Pro  Confesso,  Decree  in  Illinois,  tvhen  vacated  at 
next  term:  "If  the  defendant  shall  appear  at  the  next 
term  and  offer  to  file  his  answer  to  the  bill,  the  court 
may  permit  him  to  do  so,  upon  his  showing  sufficient 
cause,  and  paying  the  costs  of  the  preceding  terms. 
In  such  case  the  decree  shall  be  vacated  and  the  cause 
may  be  proceeded  in  as  in  other  cases"  (111.  Stat. 
Chan.  Sec.  17). 

An  answer  stating  meritorious  defense  should  be 
presented  with  the  motion  to  set  aside  default  (Schnei- 
der V.  Seibert,  50  111.  284;  Grubb  v.  Crane,  5  111.  4 
Scam.  155). 

The  vacation  of  a  pro  confesso  decree  is  discre- 
tionary; the  ruling  is  reviewed  only  for  abuse  (Smith 
V.  Brittenham,  88  111  291). 

Evidence  on  Decree  Pro  Confesso  in  Illinois — Final 
Decree:  "Where  a  bill  is  taken  for  confessed,  the  court, 
before  a  final  decree  is  made,  if  deemed  requisite,  may 
require  the  complainant  to  produce  documents  and  wit- 
nesses to  prove  the  allegations  of  his  bill,  or  may  ex- 
amine him  on  oath  or  affirmation  touching  the  facts 
therein  alleged.  Such  decree  shall  be  made  in  either 
case  as  the  court  shall  consider  equitable  and  proper" 
(111.  Stat.  Chan.  Sec.  18). 


97 

A  default  admits  that  facts  stated  in  the  bill  are 
true,  but  does  not  admit  that  they  constitute  a  cause 
of  action  (Board  of  Madison  County  v.  Smith,  95  111. 
328). 

On  default,  it  is  error  to  render  decree  for  more 
than  is  claimed  in  bill  (Beese  v.  Becker,  51  111.  82). 

When  Pro  Confesso  Decree  set  aside  in  Illinois — 
Defendant  not  served  may  have  decree  vacated  ivithin 
three  years:  "When  any  final  decree  shall  be  entered 
against  any  defendant  who  shall  not  have  been  sum- 
moned or  been  served  with  a  copy  of  the  bill,  or  re- 
ceived the  notice  required  to  be  sent  him  by  mail,  and 
such  person,  his  heirs,  devisees,  executor,  administra- 
tor or  other  legal  representatives,  as  the  case  may  re- 
quire, shall  within  one  year  after  notice  in  writing  given 
him  of  such  decree,  or  within  three  years  after  such  de- 
cree, if  no  such  notice  shall  have  been  given  as  afore- 
said, appear  in  open  court  and  petition  to  be  heard 
touching  the  matter  of  such  decree,  and  shall  pay  such 
costs  as  the  court  shall  deem  reasonable  in  that  behalf, 
the  person  so  petitioning  may  appear  and  answer  the 
complainant's  bill;  and  thereupon  such  proceedings 
shall  be  had  as  if  the  defendants  had  appeared  in  due 
season  and  no  decree  had  been  made.  And  if  it  shall 
appear,  upon  the  hearing,  that  such  decree  ought  not  to 
have  been  made  against  such  defendant,  the  same  may 
be  set  aside,  altered  or  amended,  as  shall  appear  just; 
otherwise  the  same  shall  be  ordered  to  stand  confirmed 
against  said  defendant.  The  decree  shall,  after  three 
years  from  the  making  thereof,  if  not  set  aside  in 
manner  aforesaid,  he  deemed  and  adjudged  confirmed 
against  such  defendant,  and  all  persons  claiming  under 
him  by  virtue  of  any  act  done  subsequent  to  the  com- 
mencement of  such  suit;  and  at  the  end  of  the  said 
three  years,  the  court  may  make  such  further  order  in 
the  premises  as  shall  be  required  to  carry  the  same 
into  effect"    (111.  Stat.  Chan.  Sec.  19). 

On  final  hearing,  the  original  decree  is  presumed 
correct  until  overcome  by  evidence  (Bruner  v.  Battell, 
83  111.  317).  After  three  years,  defendant  has  five 
years  more  in  which  to  bring  writ  of  error  (Lyon  v. 


98 

Robbins,  46  111  276;  Sale  v.  Fike,  54  111.  292).  Setting 
aside  default  decree  under  statute,  within  three  years, 
annuls  all  rights  acquired  under  it;  until  three  years 
have  passed  such  decree  is  merely  interlocutory. 
(Martin  v.  Gilmore,  72  111.  193).  At  the  end  of  the 
three  years  (if  proceeding  to  vacate  decree  has  not 
been  begun)  such  decree  stands  on  same  footing  as  if 
there  had  been  personal  service  on  defendant  (Caswell 
V.  Caswell,  120  111.  377). 

ENFORCEMENT  OF  DECREES. 

It  is  one  of  the  maxims  of  equity  that  a  decree  acts 
in  personam.  By  this  is  meant  that  the  decree  is  en- 
forced, if  necessary,  by  issuing  an  attachment  upon 
the  person,  when  within  the  jurisdiction  of  the  court, 
and  also  by  sequestration  of  the  goods  and  lands 
(within  the  jurisdiction)  of  the  defendant,  until  the 
defendant  complies  with  the  decree,  which  usually 
orders  the  defendant  personally  to  do,  or  cause  to  be 
done,  or  refrain  from  doing,  certain  acts. 

Performance  of  decree  is  enforced  by  process  for 
contempt,  because  the  defendant,  having  been  com- 
manded, is,  by  his  neglect  or  disobedience,  in  contempt 
of  the  authority  of  the  court.  The  law  courts  can  go 
no  farther  than  to  issue  a  process  to  satisfy  the  plaint- 
iff's demand  by  seizure  and  sale  of  his  property.  In 
chancery  it  is  not  usual  to  issue  ])rocess  of  execution 
(Karnes  v.  Harper,  48  111.  527).  But  it  may  be  done 
(Johnson  v.  Johnson,  125  111.  521). 

Before  a  defendant  is  deemed  to  be  in  contempt,  he 
must  be  personally  served  with  a  writ  of  execution, 
under  the  seal  of  the  court,  which  recites  that  jDart  of 
the  decree  which  the  defendant  is  to  obey.  A  party  is 
in  contempt  if  he  neglects  to  comply  with  the  decree 
within  the  time  therein  specified. 

If  the  })arty  has  been  served  with  a  writ  of  execu- 
tion and  he  neglects  to  obey  it,  the  fact  is  brought  to 
the  attention  of  the  court  by  affidavit,  and  a  writ  of 
attachment  is  issued,  upon  which  the  party  is  arrested 
and  brought  before  the  court,  and  if  he  does  not  purge 


99 

himself  of  the  contempt  or  comply  with  the  mandate 
at  once,  he  is  committed  to  jail. 

Section  44  of  the  Illinois  Chancery  Code  provides 
that  "a  decree  for  money  shall  be  a  lien  on  the  lands 
and  tenements  of  the  party  against  whom  it  is  ren- 
dered, to  the  same  extent  and  under  the  same  limita- 
tions as  a  judgment  at  law."  This  section  controls 
decrees  in  personam,  but  not  in  rem,  as  for  sale  of 
mortgaged  lands;  decrees  in  personam  are  a  general 
lien,  those  in  rem,  a  specific  lien  (Karnes  v.  Harper, 
48  111.  527).  The  right  to  enforce  decrees  by  execution 
is  inherent  in  courts  of  equity  (Johnson  v.  Johnson, 
125  111.  513). 

Section  45  of  the  Illinois  Chancery  Code  provides 
that  ''all  decrees  given  in  causes  in  equity  in  this 
state  shall  be  a  lien  on  aU  real  estate  respecting  which 
such  decrees  shall  be  made;  and  whenever  by  any  de- 
cree any  party  to  a  suit  in  equity  shall  be  required  to 
perform  any  act  other  than  the  payment  of  money, 
or  to  refrain  from  performing  any  act,  the  court  may, 
in  such  decree,  order  that  the  same  shall  be  a  lien 
upon  the  real  or  personal  estate,  or  both,  of  such  party, 
until  such  decree  shall  be  fully  complied  with ;  and  such 
lien  shall  have  the  same  force  and  effect,  and  be 
subject  to  the  same  limitations  and  restrictions,  as 
judgments  at  law. ' ' 

INTERLOCUTORY  PROCEEDINGS  OR  MOTIONS. 

An  interlocutory  proceeding  or  motion,  is  an  appli- 
cation or  request  made  to  the  court  for  its  aid  either 
to  further  the  proceeding  or  to  protect  the  rights  of 
some  of  the  parties  to  the  suit.  Such  applications  may 
be  made  orally,  and  are  then  called  motions,  or  in  writ- 
ing, when  they  are  called  petitions.  The  request  should 
be  in  writing  if  based  upon  a  long  statement  of  facts. 

Motions  are :  Motions  of  course,  and  motions  not  of 
course.  Motions  of  course  are  those  which  are  granted 
as  a  matter  of  course  under  some  standing  rule,  or 
according  to  the  known  practice  of  the  court.  Motions 
not  of  course  are  those  which  will  be  granted  or  re- 
fused according  to  the  discretion  of  the  court. 


100 

Cook  County  Chancery  rule  4,  provides  that  the 
following  motions,  among  others,  shall  be  considered 
as  motions  of  course :  Motions  for  default ;  default  de- 
crees, for  appointment  of  commissioners  in  partition, 
for  confirmation  of  reports  of  commissioners  and  of 
masters  where  no  excejotions  are  filed;  motions  for 
rules  to  plead,  answer  or  demur;  motions  concerning 
amendments  of  pleadings,  or  for  leave  to  file  any 
pleading  or  paper;  to  set  aside  defaults ;  for  new  bonds ; 
that  sureties  justify;  concerning  ne-exeats;  for  ex- 
parte  injunction  orders;  touching  the  custody  of  chil- 
dren; motions  for  reference  to  a  master,  and  for  con- 
tempts of  court. 

In  Cook  County,  Illinois,  according  to  rule  4,  con- 
tested motions  shall  be  deemed  to  include  all  motions 
pertaining  to  the  settling  of  pleadings;  for  alimony 
and  solicitors'  fees;  for  injunctions  upon  notice;  to 
dissolve  injunctions ;  for  the  appointment  and  removal 
of  receivers;  the  hearing  of  exceptions  to  master's  and 
receivers'  reports;  and  all  other  opposed  motions,  the 
hearing  of  which  will  operate  to  unduly  delay  the  court 
in  its  other  duties. 


DISMISSAL  OF  BILL, 

A  complainant  in  chancery  has  the  right  at  any  time 
before  decree  rendered  to  dismiss  his  bill,  unless  a 
cross-bill  has  been  filed  (Blair  v.  Beading,  99  111.  600) ; 
and  this  is  so  even  after  the  case  has  been  taken  under 
advisement  (Langlois  v.  Matthiessen,  155  111.  230). 
After  a  decree,  the  bill  cannot  be  dismissed  except  by 
consent;  but  after  a  reversal  of  a  decree  without  di- 
rections, the  complainant  may  dismiss  the  bill;  the 
effect  of  the  reversal  being  to  leave  the  cause  pending 
for  hearing  as  if  no  decree  had  been  rendered  (Mohler 
V.  Wiltberger,  74  111.  163).  A  bill  should  not  be  dis- 
missed on  motion  except  for  want  of  equity  or  juris- 
diction, on  its  face  (Johnson  v.  Railway  Co.,  Ill  111. 
417).  A  decree  dismissing  a  bill  needs  no  evidence  to 
support  it  (Bank  v.  Baker,  161  111.  281).    The  dismissal 


101 

of  a  bill  "without  prejudice"  and  a  simple  dismissal 
of  the  bill  will  have  the  same  etfect  as  far  as  a  new 
proceeding  is  concerned  (Bates  v.  Skidmore,  170  111. 
233). 

DISMISSING  THE  BILL  AT  THE  HEARING. 

When  the  pleadings  are  defective,  or  when  through 
some  informality  in  the  bill  the  court  cannot  give  the 
complainant  relief,  or  where  from  some  other  cause 
the  bill  is  dismissed  without  the  court  passing  upon 
the  merits,  and  it  appears  that  the  complainant  may 
be  entitled  to  some  relief,  it  will  be  dismissed  ivithout 
prejudice  (Story's  Eq.  PI.  Sec.  456,  793). 

But  if  a  bill  is  dismissed  by  the  court  upon  the 
hearing  "for  want  of  equity,"  such  dismissal  may  be 
pleaded  in  bar  to  a  new  bill  filed  for  the  same  cause 
of  action ;  and  a  bill  cannot  be  dismissed  without  prej- 
udice when  a  new  bill  must  cover  the  same  ground 
(Crozier  v.  Acre,  7  Paige  137). 

COSTS. 

Costs  are  recoverable  only  in  cases  where  there  is 
statutory  authority  therefor  (Smith  v.  McLaughlin, 
77  111.  596).  The  Legislature  may  grant  the  power  in 
general  terms  to  the  courts,  which  may  make  rules  or 
orders  under  which  costs  may  be  taxed  (Tesla  Elec- 
tric Co.  V.  Scott,  101  Fed.  524). 

In  the  federal  courts  prior  to  the  act  of  Februarv 
26,  1853  (U.  S.  Comp.  Stat.,  1901,  p.  632)  the  taxation 
of  costs  in  the  different  districts  was  according  to  the 
statutes  of  the  state  in  which  the  district  was  situated 
(Primrose  v.  Fenno,  113  Fed.  375).  The  federal  stat- 
ute controls  all  costs  mentioned  therein  (O'Neill  v. 
K.  C.  R.  E.  Co.,  31,  663). 

Section  18  of  the  Illinois  Costs  Act  provides  that, 
"upon  the  complainant  dismissing  his  bill  in  equity, 
or  the  defendant  dismissing  the  same  for  want  of 
prosecution,  the  defendant  shall  recover  against  the 
complainant  for  costs ;  and  in  all  cases  in  chancery  not 
otherwise  directed  by  law,  it  shall  be  in  the  discretion 


102 

of  the  court  to  award  costs  or  not;  and  the  payment 
of  costs  when  awarded  may  be  compelled  by  execu- 
tion." The  discretion  of  the  court  in  awarding  costs 
is  a  sound  legal  discretion,  and  should  not  be  exercised 
to  do  injustice  (Hollingsworth  v.  Koon,  117  111.  511). 

In  Illinois  the  statute  requires  that  a  non-resident 
complainant,  before  begining  suit,  shall  file  a  bond, 
with  a  resident  of  the  state  as  surety.  If  such  bond  is 
not  filed  upon  the  court's  order,  the  suit  must  be  dis- 
missed, and  plaintiff's  attorney  must  pay  all  accrued 
costs.  The  bond  must  be  substantially  in  the  follow- 
ing form  (111.  Stat.  Costs,  Sec.  1  and  3) : 
(Venue) 

Title  of  Court. 
A.  B. 

vs. 
C.  D. 

I  (E.  F.),  do  enter  myself  security  for  all  costs 
which  may  accrue  in  the  above  cause. 

Dated  this day  of A.  D.  19. . 

(Signed)     E.   F. 

If  at  any  time  after  the  commencement  of  the  suit 
the  complainant  becomes  a  non-resident;  or  if  the 
court  be  satisfied  that  complainant  is  unable  to  pay  the 
costs  of  suit,  or  that  he  is  so  unsettled  as  to  "endanger 
the  officers  of  the  court  with  respect  to  their  legal 
demands"  it  is  the  duty  of  the  court  on  motion  of  the 
defendant,or  of  any  officer  of  the  court,  upon  the 
proper  statutory  affidavit,  to  rule  the  complainant  to 
give  bond  for  payment  of  costs.  Upon  failure  to  file 
a  bond,  the  suit  will  be  dismissed  (111.  Stat.  Costs,  Sec. 
4). 

CHANCERY  RECORD  IN  ILLINOIS. 

The  record  of  the  decree  of  the  trial  court  to  be 
filed  in  the  court  of  appeals  or  error,  or  in  return  to 
a  writ  of  error,  or  certiorari,  must  contain,  in  chrono- 
logical order,  copies  of:  the  process  and  service,  the 
pleadings,  the  decree,  all  orders  in  the  cause,  the 
judge's  certificate  of  evidence  or  all  depositions,  or  the 
master's  report  and  certificate  of  evidence,  if  any;  and 


103 

tlie  appeal  bond,  in  case  of  appeal.  In  no  case  may 
the  clerk  insert  in  any  transcript  any  matter  not  a 
part  of  the  record ;  and  the  clerk  of  the  reviewing  court 
may  not  tax  as  costs  any  matter  inserted  contrary  to 
rule  (Rule  1,  Illinois  Supreme  and  Appellate  Courts). 

INJUNCTIONS, 

An  injunction  is  a  writ  granted  by  a  court  command- 
ing an  act  to  be  done  which  the  court  regards  as  es- 
sential to  justice  (mandatory  injunction),  or  forbid- 
ding an  act  which  it  deems  against  justice  (preventive 
injunction). 

Injunctions  are  (1)  preliminary  or  interlocutory,  or 
(2)  perpetual.  The  tirst  are  granted  prior  to  the  final 
hearing  and  continue  until  answer  or  until  final  hear- 
ing, or  until  further  order  of  the  court.  They  do  not 
determine  the  rights  of  the  parties.  Their  purpose  is 
to  maintain  the  status  quo,  to  continue  property  in  its 
existing  condition,  to  prevent  further  or  impending  in- 
jury— not  to  determine  the  right  itself.  If  a  prelimi- 
nary injunction  has  the  effect  of  granting  all  the  re- 
lief that  could  be  obtained  by  a  final  decree  and  would 
practically  dispose  of  the  whole  case,  it  will  not  be 
granted ;  nor  will  it  be  granted  where  the  injurious  acts 
have  been  completed ;  nor  where  they  have  been  discon- 
tinued and  there  is  no  showing  that  they  are  likely  to  be 
renewed.  Of  course,  it  will  not  be  granted  where  it 
is  not  apparent  that  any  injury  will  occur  (Cyc.  Vol. 
22,  page  741).  A  perpetual  injunction  is  one  granted 
by  the  decree  which  finally  determines  the  injunction 
suit. 

In  the  great  majority  of  cases,  an  injunction  is 
merely  a  preventive  remedy,  and  in  some  cases  the 
courts  have,  on  these  grounds,  refused  to  issue  an  in- 
junction mandatory  in  its  nature,  or  have  declared  that 
it  is  not  the  object  of  an  injunction  to  redress  a  con- 
summated wrong,  or  to  undo  what  has  been  done;  yet 
there  is  no  doubt  as  to  the  power  of  the  courts  of  rec- 
ord to  issue  mandatory  injunctions.  Because  a  man- 
datory injunction  generally  does  something  more  than 


104 

to  maintain  the  status  quo,  it  is  ordinarily  improper 
to  issue  such  an  injunction  prior  to  the  final  hearing; 
and  it  is  frequently  said  that  such  a  mandatory  pre- 
liminary injunction  will  never  issue  (Cyc.  Vol.  22,  page 
743). 

Bestraining  orders:  A  restraining  order  is  an  order 
granted  to  maintain  the  subject-matter  of  the  suit  in 
its  then  condition  until  the  hearing  of  the  application 
for  a  temporary  injunction.  Its  purpose  is  to  merely 
suspend  proceedings  until  there  may  be  opportunity 
to  inquire  whether  any  injunction,  even  a  preliminary 
one,  shall  be  granted,  and  it  is  not  intended  as  an  in- 
junction pendente  lite.  Its  duration  should  be  limited 
to  such  reasonable  time  as  may  be  necessary  to  notify 
the  adverse  party;  especially  where  the  defendant  is 
likely  to  be  damaged  by  delay.  It  ceases  to  be  operative 
at  the  time  fixed  by  its  terms.  A  restraining  order 
contemplates  a  further  hearing  on  the  application  for 
preliminary  injunction  upon  notice  to  the  adverse 
party,  while  the  temporary  injunction  contemplates  no 
further  hearing  until  the  final  action  is  taken  upon  the 
application  (State  v.  Baker,  62  Neb.  840;  U.  S.  Stat. 
Restraining  Orders). 

Existence  and  nature  of  the  right:  The  existence  of 
a  right  and  its  violation  are  prerequisites  to  the  grant- 
ing of  an  injunction.  The  right  asserted  by  complain- 
ant must  be  perfectly  clear  and  free  from  doubt  where 
the  preliminary  injunction  will  do  more  than  merely 
maintain  the  status  quo,  or  where  the  injunction  will 
cause  greater  loss  and  inconvenience  than  will  be  suf- 
fered by  complainant  if  no  injunction  be  granted; 
and  the  bill  must  plainly  show  that  an  irreparable 
injury  is  impending  and  will  occur  before  the  final 
hearing  can  be  had  (Cyc.  Vol.  22,  page  754).  The 
bill  for  injunction  must  show  that  the  acts  sought  to  be 
prevented  will  be  a  substantial  violation  of  complain- 
ant's clear  right  and  not  a  mere  inconvenience  to  com- 
plainant's right  (Mason  v.  Rollins,  2  Biss.  99). 

Since  a  chancery  decree  acts  in  personam,  a  court 
having  jurisdiction  of  the  parties  may  grant  and  en- 
force an  injunction,  although  the  subject-matter  af- 


105 

fected  by  it  is  beyond  the  territorial  jurisdiction  of  the 
court  (Alexander  v.  Tolleston  Club,  110  111.  65). 

In  Illinois,  liy  statute,  no  injunction  will  be  granted 
without  previous  notice  of  the  time  and  place  of  the 
application  having  been  given  to  the  defendants  who 
can  conveniently  be  served ;  unless  it  appears  from  the 
bill  or  affidavit  accompanying  the  same  that  the  rights 
of  the  complainant  will  be  unduly  prejudiced  if  the  in- 
junction is  not  issued  immediately  or  without  such  no- 
tice; and  in  all  cases,  before  an  injunction  shall 
issue,  the  complainant  must  give  bond  as  may  be  re- 
quired, unless,  for  good  cause  shown,  the  court,  judge 
or  master  is  of  opinion  that  the  injunction  ought  to  be 
granted  without  bond. 

Dissolving  in  junction  and  damages:  In  Illinois,  after 
an  injimction  is  dissolved,  the  court,  before  finally  dis- 
posing of  the  suit,  upon  the  party  claiming  damages  by 
reason  of  such  injunction  suggesting  in  writing  the  na- 
ture and  amount  thereof,  shall  hear  evidence  and  assess 
such  damages  as  the  nature  of  the  case  may  require. 
A  motion  to  dissolve  an  injunction  may  be  made  at  any 
time  upon  answer,  or  for  want  of  equity  on  the  face  of 
the  bill.  Upon  a  motion  to  dissolve  an  injunction  after 
answer,  the  court  shall  not  be  bound  to  take  the  answer 
as  absolutely  true,  but  shall  decide  the  motion  upon  the 
weight  of  the  testimony  (111.  Statute  on  Injunctions). 

As  before  stated,  evidence  in  the  form  of  affidavits 
may  be  used  in  Illinois  to  support  the  bill  or  answer, 
upon  motions  to  dissolve  an  injunction  (111.  Stat. 
In  June.  Sec.  17) ;  and  the  court  may  require  oral  evi- 
dence in  lieu  of  such  affidavits  (111.  Stat.  Prac.  Sec.  86). 
To  warrant  the  issuing  of  a  temporary  injunction 
upon  the  allegations  of  the  bill,  the  allegations  must  be 
verified  positively,  and  not  merely  on  information  and 
belief  (Crawford  v.  Bell.  95  111.  App.  427). 

RECEIVERS. 

Definition:  A  receiver  is  an  officer  of  the  court, 
through  whom  the  court  takes  possession  of  property 
which  is  the  subject-matter  of  suit,  preserves  it  from 
waste,  destruction  or  loss,  manages  the  same,  secures 


106 

and  collects  the  proceeds,  and  ultimately  disposes  of 
the  property  and  proceeds  according  to  the  rights  of 
those  entitled  thereto,  whether  they  are  regular  par- 
ties in  the  suit  or  come  in  during  the  course  of  the 
proceedings  and  establish  their  rights.  There  must  be 
a  pending  suit  (Baker  v.  Adm.  of  Backus,  32  111.  79). 

Situs  of  property:  A  receiver  may  be  appointed  for 
all  property  within  the  jurisdiction  of  the  court, 
whether  or  not  the  owner  is  within  such  jurisdiction 
(Hutchinson  v.  American  Palace  Car  Co.,  104  Fed. 
Eep.  182) ;  and  a  receiver  may  be  appointed  for  the 
express  purpose  of  preventing  the  removal  beyond  the 
jurisdiction  of  property  within  the  jurisdiction  of  the 
court  (Loaiza  v.  Superior  C.  T.,  85  Cal.  11). 

Object  and  grounds  for  appointment :  It  should  ap- 
pear from  the  bill  that  the  object  in  having  a  receiver 
appointed  is  the  preservation  of  the  property  which 
is  the  subject-matter  of  the  suit,  until  a  judicial  deter- 
mination of  the  rights  of  the  parties  thereto  (Hooper 
V.  Winston,  24  111.  353;  Davis  v.  Gray,  16  Wall.  203). 
The  principal  ground  for  the  appointment  of  a  receiver 
is  danger  of  loss  or  injury  to  such  property  before  the 
court  can  decree  disposition  thereof  on  the  merits.  If 
there  is  no  showing  of  probable  danger  or  loss  or  in- 
jury to  the  property  involved,  no  appointment  will  be 
made  (Beecher  v.  Bininger,  7  Blatchf.  U.  S.  170;  Bush 
V.  Mattox,  110  Ga.  472).  The  court  will  not  appoint  a 
receiver  unless  it  is  shown  that  the  possessor  is  insolv- 
ent, or  at  least  that  there  is  great  doubt  of  his  ability 
to  satisfy  a  judgment  for  damages  for  loss  or  injury 
to  the  property  (Haines  v.  Carpenter,  1  Woods  U.  S. 
266)  ;  but  insolvency  is  not  sufficient  as  a  sole  ground 
for  the  appointment  of  a  receiver  (Onondaga  Trust 
Co.  V.  Spartansburg  Water  Wks.  Co.,  91  Fed.  324) 
except  in  foreclosure  cases  (Hughes  v.  Hatchett,  55  Ala. 
634).  Where  insolvency  is  likely  to  result  in  a  loss  of 
the  fund  or  property  in  controversy,  a  receiver  may 
be  appointed  on  the  ground  of  insolvency  (Ryder  v. 
Bateman,  93  Fed.  Rep.  16). 

It  is  a  very  high  exercise  of  power  for  a  court  of 
chancery  to  take  property  out  of  the  hands  of  its 


107 

owner,  or  of  one  in  possession  asserting  himself  to  be 

its  owner,  and  place  it  in  the  custody  of  a  third  person. 
Hence  the  court  will  exercise  this  extreme  preroga- 
tive only  when  it  is  made  to  appear  that  the  property 
will  probably  be  wasted,  secreted  or  misapplied,  and 
that  its  rightful  claimants  will  thereby  be  injured  or 
defrauded  if  it  is  allowed  to  remain  in  its  present 
hands  (Crombie  v.  Order  of  Solon,  157  Pa.  St.  588). 

Receiver  for  a  trustee:  Danger  to  a  trust  fund 
or  property  is  a  prerequisite  to  the  interference 
of  the  court  with  a  trustee's  possession  (Middle- 
ton  V.  Doddswell,  13  Ves.  Jr.  268;  Richards  v. 
Barrett,  5  111.  App.  514) ;  but  if  a  trustee  is 
guilty  of  positive  misconduct  or  waste,  or  has  im- 
properly disposed  of  a  part  of  the  trust  estate,  or  has 
an  undue  bias  towards  one  of  the  contending  parties, 
a  receiver  will  be  appointed  (Am.  and  Eng.  Encyc.  23, 
page  1012).  When  there  is  no  person  entitled  to  the 
property  who  is  competent  to  manage  it  pending  the 
suit,  a  receiver  will  be  appointed  (Skinner  v.  Maxwell, 
QQ  N.  C.  48). 

The  appointment  of  a  receiver  is  a  remedy  of  equi- 
tahle  origin  and  jurisdiction,  and  to  maintain  it  there 
must  exist  no  remedy  at  law  (Wanneker  v.  Hitch- 
cock, 38  Fed.  Rep.  383).  A  receiver  will  not  be  ap- 
pointed when  the  suit  is  upon  a  mere  question  of  legal 
right  (Rollins  v.  Henry,  77  N.  C.  469),  or  when  the 
party  can  assert  his  right  by  a.  direct  action  at  law. 
A  receiver  will  not  in  general  be  appointed  where  the 
creditor  may  have  execution  and  recover  his  debt  by 
sale  of  the  debtor's  property  (Parker  v.  Moore,  3  Edw. 
N.  Y.  234). 

Plaintiff,  to  obtain  a  receiver,  must  show  he  has  a 
clear  right  to  the  property,  or  that  he  has  some  lien 
upon  it,  or  that  the  property  constitutes  a  special  fund 
for  the  satisfaction  of  his  claim. 

Receiver's  control  over  property:  A  receiver  is  en- 
titled to  take  possession  and  control  of  property  or 
funds  involved,  and  to  manage  and  dispose  of  the  same 
under  the  directions  of  the  appointing  court  (Miller 
V.  Jones,  39  111.  54).    He  cannot  turn  over  the  control 


108 

and  management  to  another  (Sliadewald  v.  White,  74 
Minn.  208).  The  mere  order  of  appointment  does 
not  constitute  actual  possession  of  the  property  (Wood- 
land Bank  v.  Heron,  120  Cal.  614).  Property  in  the 
receiver's  hands  is  exempt  from  judicial  process  as  a 
rule,  except  as  permission  can  be  given  by  the  appoint- 
ing court  (Jackson  v.  Lahee,  114  111.  287). 

A  receiver  has  no  authority  in  any  state  or  country 
other  than  that  in  which  he  was  appointed,  and  his 
authority  will  not  be  recognized  elsewhere  (Booth  v. 
Clark,  17  How.  322,  330).  He  is  incompetent  to  sue 
in  a  foreign  jurisdiction,  just  as  an  executor  or  admin- 
istrator appointed  in  one  state  has  no  authority  to 
bring  suit  in  any  other.  Some  cases,  however,  have 
held  to  the  contrary  (High  on  Receivers,  Sec.  241). 

Bond  instead  of  receiver:  Where  the  person  in  pos- 
session of  property  or  receiving  rents  from  property 
offers  to  execute  a  bond  to  secure  the  person  seeking 
a  receiver  from  any  loss  pending  the  suit,  a  receiver 
will  not  as  a  rule  be  appointed  (Devereaux  v.  Flem- 
ing, 47  Fed.  Rep.  177). 

In  Illinois,  before  a  receiver  is  appointed,  the  ap- 
plicant must  give  bond  to  the  adverse  party,  condi- 
tioned to  pay  all  damages,  including  attorney's  fees, 
sustained  by  reason  of  the  appointment  and  acts  of  the 
receiver,  in  case  the  appointment  is  revoked  or  set  side. 
The  court,  however,  may  for  good  cause,  and  upon 
notice  and  hearing,  appoint  a  receiver  without  such 
bond  (111.  Stat.  Chan.,  Receivers,  Sec.  1).  Also  in 
Illinois  in  lieu  of  appointing  a  receiver,  the  court  may 
permit  the  party  in  possession  to  retain  possession 
upon  giving  bond;  and  the  court  may  remove  a  receiver 
and  restore  the  property  to  the  possession  of  the  orig- 
inal possessor  upon  the  giving  of  a  like  bond  (111.  Stat. 
Chan.,  Receivers,  Sec.  2). 

Receivers  of  corporations:  A  court,  as  a  rule,  will 
not  by  a  receiver  take  the  control  and  management  of 
the  corporation  out  of  the  hands  of  its  officers  and  di- 
rectors (Ranger  v.  Champion  Cotton  Press  Co.,  52 
Fed.  Rep.  609) ;  but  if  a  corporation  is  insolvent  and 
has  suspended  operations,  a  receiver  may  be  appointed 


109 

to  protect  its  creditors  and  stockholders  (McGreorge 
V.  Big  Stone  Gap  Imp.  Co.,  57  Fed.  262).  Also,  when 
a  corporation  is  dissolved  and  has  no  place  of  business 
and  no  officers  to  attend  to  its  business,  a  receiver  may 
be  appointed  to  preserve  the  assets  (Midland  Co.  v. 
Anderson,  63  111.  App.  51).  By  the  appointment  of  a 
receiver  the  corporation  is  deprived  of  the  right  to 
exercise  its  powers  only  to  the  extent  that  the  decree 
of  the  court  transfers  such  powers  to  the  receiver 
(Ohio  R.  Co.  V.  Russell,  115  111.  52). 

Get  leave  to  sue  receiver:  The  rule  is  that  in  the 
absence  of  a  statute  to  the  contrary  no  suit  can  be 
brought  against  a  receiver  without  permission  from 
the  appointing  court  (Barton  v.  Barbour,  104  U.  S. 
126;  Mulcahey  v.  Strauss,  151  111.  70).  It  rests  in 
the  discretion  of  the  court  to  allow  a  party  to  bring 
an  independent  action  against  the  receiver,  or  to  com- 
pel him  to  proceed  in  the  suit  in  which  the  receiver 
was  appointed  (Mechanic's  Nat.  Bank  v.  Landauer,  68 
Wis.  44).  Leave  to  sue  a  receiver  is  granted  as  a  mat- 
ter of  course,  unless  it  is  clear  that  there  is  no  founda- 
tion to  the  claim  (Hills  v.  Parker,  11  Mass.  508). 
Failure  to  obtain  leave  of  court  before  suing  a  receiver 
is  merely  an  irregularity,  which,  though  punishable  as 
a  contempt,  may  be  cured  or  waived  at  any  stage  of  the 
proceedings  (Holbrook  v.  Ford,  153  111.  633;  De- 
Groot  V.  Jay,  30  Barbour  N.  Y.  483). 

The  plaintiff  in  such  action  only  renders  himself 
liable  to  have  his  proceedings  stopped  by  the  appoint- 
ing court  on  the  application  of  the  receiver,  by  action 
against  the  plaintiff  personally  (L\Tnan  v.  Central 
Vermont  R.  Co.,  59  Ver.  167). 

Inasmuch  as  the  receiver  is  an  oflScer  of  the  court, 
any  unlawful  interference  with  him  in  the  perform- 
ance of  his  duties,  or  in  his  possession  of  the  prop- 
erty, is  deemed  a  contempt  of  the  court,  and  will  be 
punished  as  such  {In  re  Higgins,  27  Fed.  Rep.  443; 
St.  L.,  A.  &  S.  R.  R.  Co.  V.  Hamilton,  158  111.  366). 


110 


NE  EXEAT. 

When  a  proper  bill  is  filed,  or  upon  petition  in  a 
suit  already  begun,  if  it  is  made  to  appear  satisfac- 
torily to  the  court  that  the  defendant  intends  quickly 
to  depart  from  the  State  or  from  the  United  States; 
that  there  is  due  from  him  a  sum  certain  or  ascertain- 
able; that  complainant  has  no  sufficient  legal  redress, 
and  that  irreparable  injury  or  a  failure  of  justice  will 
be  caused  to  complainant  if  the  defendant  so  departs, 
such  court  may  order  the  writ  of  ne  exeat  to  issue, 
upon  which  the  sheriff  or  marshal  arrests  the  defend- 
ant and  keeps  him  in  custody,  unless  he  gives  security, 
to  abide  the  order  and  decree  of  the  court  (Griswold 
V.  Hazard,  141  U.  S.  260). 

(As  to  power  of  Master  to  issue  writ  of  ne  exeat,  see 
Bassett  v.  Bratton,  86  111.  152;  also  111.  Stat.,  "Masters 
in  Chancery;"  also  Cook  County  Chancery  Eules  of 
Circuit  and  Superior  Court,  Rule  6.) 

In  Illinois,  by  statute,  writs  of  ne  exeat  repuhlica  are 
granted  as  well  in  cases  where  the  debt  or  demand  is 
not  actually  due,  but  exists  fairly  and  bona  fide  in 
expectancj^,  at  the  time  of  making  application,  as  in 
cases  where  the  demand  is  due;  and  it  is  not  neces- 
sary, to  authorize  the  granting  of  such  writ  of  ne  exeat, 
that  the  applicant  should  show  that  his  debt  or  de- 
mand is  purely  of  an  equitable  character,  and  only 
cognizable  before  a  court  of  equity.  In  case  of  joint 
obligors  or  debtors,  if  one  or  more  of  them  be  about 
to  remove  beyond  the  state,  taking  pro]:)erty  with  them, 
leaving  one  or  more  co-obligors  or  co-debtors  bound 
with  them  to  pay  a  sum  of  money  or  to  convey  cer- 
tain property  at  a  certain  time,  which  time  shall  not 
have  arrived  at  the  time  of  such  intended  removal,  then 
such  co-obligor  who  remains  is  entitled  to  a  writ  of 
ne  exeat  to  compel  the  co-obligor  who  is  al)out  to  re- 
move to  secure  performance  on  his  part.  Also,  in  cases 
of  surety,  the  writ  of  ne  exeat  may  issue,  on  applica- 
tion of  a  surety,  against  the  principal  or  co-security, 
when  the  obligation  or  debt  shall  not  yet  be  due,  and 


Ill 

the  principal  or  co-security  is  about  to  remove  out  of 
the  state. 

Bill  or  petition — Bond — Suit  oiii:  No  writ  of  7ie 
exeat  will  be  granted  in  Illinois  except  upon  bill  filed, 
and  upon  affidavit.  Upon  the  granting  of  any  such 
writ,  the  court  indorses  upon  the  bill  or  petition  in 
what  penalty  bond  and  security  shall  be  required  of 
defendant.  The  court  also  takes  of  the  complainant, 
before  the  writ  shall  issue,  bond,  with  good  and  suffi- 
cient surety,  in  such  sum  as  the  court  may  deem 
proper,  conditioned  that  the  said  complainant  will  pros- 
ecute his  bill  or  petition  with  effect,  and  that  he  will 
reimburse  to  the  defendant  such  damages  and  costs 
as  he  may  wrongfully  sustain  by  occasion  of  the  said 
writ.  If  any  defendant  to  such  writ  of  ne  exeat  shall 
think  himself  aggrieved,  he  may  bring  suit  on  such 
bond;  and  if,  on  trial,  it  shall  appear  that  such  writ 
of  ne  exeat  was  prayed  for  without  a  just  cause,  the 
person  injured  may  recover  damages,  to  be  assessed 
as  in  other  cases  on  penal  bonds. 

Form  of  ivrit — Temporary  departure  no  breach: 
In  Illinois  the  writ  of  ne  exeat  contains  a  summons 
for  the  defendant  to  appear  in  the  proper  court  and 
answer  the  bill;  and  upon  the  writ  being  served  de- 
fendant must  give  bond,  with  security,  in  the  sum  in- 
dorsed on  such  writ,  conditioned  that  he  will  not  de- 
part the  state  without  leave  of  the  court,  and  that  he 
will  render  himself  in  execution  to  answer  any  judg- 
ment or  decree  which  the  court  may  render  against 
him;  and  in  default  of  giving  such  security,  he  may 
be  committed  to  jail,  as  in  other  cases,  for  the  want 
of  bail.  No  temporary  departure  from  the  state  will 
be  considered  as  a  breach  of  the  condition  of  the  said 
bond,  if  he  returns  before  personal  appearance  be 
necessary  to  answer  or  perform  any  judgment,  order 
or  decree  of  said  court    (111  Stat,  ne  exeat). 


112 
PARTIES. 

WHO  ARE  DEEMED  PARTIES. 

The  parties  to  a  suit  in  equity  are  those  only  who 
are  named  in  the  bill  as  such;  plaintiffs  in  the  intro- 
duction, and  defendants,  those  described  as  such  and 
against  whom  process  is  prayed.  The  capacity  in 
which  one  sues  or  is  sued  should  be  stated:  but  if  the 
party  be  actually  before  the  court,  a  misdescription 
as  to  the  right  under  which  he  claims  may  be  disre- 
garded as  surplusage.  While  some  persons,  not  par- 
ties to  the  record,  may  in  the  course  of  the  proceedings 
become  parties,  in  the  sense  that  they  may  be  heard  on 
petition  or  motion,  the  court  will  not  look  out  of  the 
record  for  the  parties,  and  one  not  named  as  a  party 
cannot  inject  himself  into  a  suit  by  pleading  to  the 
bill  and  thereby  claim  the  rights  of  a  party  (16  Cyc. 
195). 

GROUPING  AS  PLAINTIFFS  OR  DEFENDANTS. 

The  grouping  of  parties  as  plaintiffs  or  defendants 
is  of  less  importance  in  equity  than  at  law.  If  the 
requisite  of  a  proper  plaintiff  exists,  it  is  sufficient  if 
all  persons  interested  be  before  the  court,  regardless 
of  their  position  or  grouping  as  plaintiffs  or  defend- 
ants. The  court  will,  when  occasion  demands,  trans- 
pose a  party  from  one  side  to  the  other,  or  it  may 
proceed  to  decree  without  making  the  formal  change 
(IG  Cyc.  196).  One  who  should  be  a  co-complainant, 
but  refuses  to  join  as  such,  should  be  made  a  defend- 
ant   (Whitney  v.  Mayo,  15  111.  251). 

PLAINTIFFS. 

In  order  to  sustain  his  suit,  plaintiff  must  show  he 
has  an  interest  in  the  subject-matter  of  the  suit  and  in 
obtaining  the  object  of  the  suit,  and  a  bill  is  demur- 
rable which  fails  to  show  such  interest.  A  suit  in 
equity  cannot  be  brought  in  the  name  of  one  party  for 
the  use  of  another.  It  must  be  brought  in  the  name 
of  the  real  party  in  interest  (Elder  v.  Jones,  85  111. 


113 

384).  All  who  are  united  in  interest  and  entitled  to 
the  relief  sought  should  be  joined  as  plaintiffs,  unless 
a  reason  be  shown  for  their  not  being  joined,  such  as 
their  great  number,  etc.    Parties  cannot  be  joined  as 

plaintiffs  who  have  conflicting  interests  (16  Cyc.  198). 
If,  among  plaintiffs,  there  be  one  not  entitled  to  relief, 
the  objection  should  be  cured  by  dismissing  the  bill  as 
to  such  plaintiff.  If  one  not  made  a  party  files  an  in- 
tervening petition,  disclosing  an  interest  in  the  subject- 
matter  of  the  suit,  plaintiff  must  amend  his  bill  and 
make  the  petitioner  a  party,  if  such  interest  is  to  be 
settled  in  the  suit. 

DEFENDANTS. 

Defendants  should  be  all  necessary  parties,  except 
those  who  are  plaintiffs,  and  except  such  dispensable 
parties  as  are  omitted  for  reasons  shown  in  the  bill; 
as,  for  instance,  that  they  are  without  the  jurisdiction 
of  the  court,  or  cannot  be  joined  without  ousting  the 
jurisdiction  as  to  the  other  parties;  and  defendants 
may  include,  also,  such  proper  parties  as  plaintiff 
may  see  fit  to  join    (Cyc  199). 

Parties  depend  on  the  nature  of  the  controversy, 
on  the  relief  sought,  on  the  subject-matter,  and  upon 
the  aim  of  equity  courts  to  determine  the  whole  con- 
troversy in  one  suit,  if  practicable  (Vol.  16,  Cyc.  183). 

They  may  be  divided  into  three  classes : 

1.  Necessary  and  indispensable  parties,  having  in- 
terests such  that  any  decree  made  in  the  suit  will  af- 
fect such  interests.  The  courts  are  powerless  to  pro- 
ceed without  such  parties. 

2.  Necessary  but  dispensable  parties,  having  in- 
terests such  that  the  controversy  cannot  be  completely 
determined  without  them,  but  still  such  a  distinct  in- 
terest that  some  kind  of  a  decree  can  be  entered  which 
will  not  affect  such  interest.  The  court  has  discretion 
to  refuse  to  proceed  without  such  parties,  but  it  will 
in  its  discretion  proceed  without  them,  as  follows : 
(a)  When  it  is  impossible  to  bring  them  in,  or  when 
the  delay  and  inconvenience  of  bringing  them  in  would 
defeat  justice,     (b)    Where  parties  are  very  numerous 


114 

or  some  are  not  yet  in  existence,  if  the  interests  of 
those  not  made  parties,  are  properly  represented  by 
similarly  interested  parties  actually  in  court  subject 
to  the  jurisdiction  who  defend  the  suit,  then  a  decree 
can  be  rendered  without  such  parties  according  to  the 
doctrine  of  representation  (Hale  v.  Hale,  146  HI.  227). 
Even  a  future  contingent  interest  may  be  thus  repre- 
sented (McFall  V.  Kirkpatrick,  236  HI.  306).  (c.)  The 
court  may  proceed  without  parties  beyond  the  juris- 
diction, if  the  decree  can  be  complete  as  to  the  parties 
within  the  jurisdiction  and  not  harm  those  without, 
(d)  If  the  bill  shows  parties  are  unknown  after  the 
exercise  of  diligence  to  ascertain  them,  (e)  If  a  party 
supposed  to  be  interested  disclaims  such  interest. 

3.  Unnecessay,  hut  proper  parties,  being  such  as 
have  no  interest  in  the  controversy  between  the  im- 
mediate litigants,  yet  have  such  an  interest  in  the  sub- 
ject-matter of  the  suit  as  may  conveniently  be  settled 
in  the  suit.  It  is  optional  with  the  plaintiff  to  omit 
or  to  join  such  parties. 


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116 

When  the  complainant  desires  to  obtain  from  a  cor- 
poration the  answer  of  some  officer  of  the  corporation 
under  oath,  such  officer  must  be  named  and  made  one 
of  the  defendants  in  the  bill  (Buford  v.  Rucker,  4  J.  J. 
March  551). 

OBJECTIONS  AS  TO  PARTIES. 

The  objection  that  a  party  has  been  mis  joined  as  a 
defendant,  when  he  should  have  been  joined  as  a 
plaintiff,  or  vice  versa,  is  often  disregarded,  because, 
in  equity,  it  is  not  always  important.  But  the  objec- 
tion that  there  has  been  non- joinder  of  a  necessary  and 
indispensable  party  may  be  raised,  in  any  manner,  at 
any  time,  as  on  the  hearing  or  on  appeal,  and  it  goes 
to  the  jurisdiction.  The  court  may  of  its  own  motion 
raise  and  act  upon  the  objection.  Not  so  the  objection 
that  necessary,  but  dispensable,  parties  were  not 
joined.  Such  objection  must  be  raised  by  demurrer, 
plea  or  answer,  in  which  the  proper  omitted  parties 
must  be  pointed  out,  not  by  name,  if  that  is  impos- 
sible, but  in  such  manner  as  to  indicate  the  precise 
objection  and  enable  plaintiff  to  amend  (16  Cyc.  207). 

CURING  DEFECTS  AS  TO  PARTIES. 

If  doubt  exists  whether  the  court  will  grant  a  final 
decree  by  reason  of  the  absence  of  parties,  the  ques- 
tion should,  if  possible,  be  presented  and  settled  be- 
fore incurring  the  delay  and  expense  of  taking  testi- 
mony. 

Where  a  co-partnership  or  association  other  than  a 
corporation  is  a  party,  the  names  of  the  individuals 
must  be  set  forth,  because  it  is  not  permissible  to  use 
the  firm  name  (The  Protector,  11  Wall.  82;  Chapman 
V.  Barney,  129  U.  S.  677).  And  the  given  names  of  the 
parties  in  all  cases  should  be  used  instead  of  the  iu- 
itials  (Monroe  Cattle  Co.  v.  Becker,  147  U.  S.  47). 

(Sec.  13,  111.  Practice  Act:)  "A  co-partnership,  the 
members  of  which  are  all  non-residents,  but  having 
a  place  or  places  of  business  in  any  county  of  this 
state  in  which  suit  may  be  instituted,  may  be  sued  by 


117 

the  usual  and  ordinary  name  which  it  has  assumed 
and  under  which  it  is  doing  business;  and  service  of 
process  may  be  had  in  such  county  upon  such  co-part- 
nership by  serving  the  same  upon  any  agent  of  said 
co-partnership  within  this  state." 

Sec.  17,  111.  Practice  Act:)  Joining  name  of  co-plaint- 
iff ivho  refuses  to  joi7i — Title:  "If  any  person  neces- 
sary to  be  joined  as  plaintiff  in  any  suit  or  proceeding 
shall,  upon  request,  not  consent  to  join  therein,  his 
name  may,  nevertheless,  be  used  by  the  other  party 
plaintiff,  upon  filing  with  the  clerk  of  the  court  an  ob- 
ligation, with  good  and  sufficient  sureties,  to  be  ap- 
proved by  a  judge  or  the  clerk  of  the  court  in  which 
the  suit  or  proceeding  is  to  be  commenced,  shown  by 
his  indorsement  of  approval  thereon,  to  protect,  save 
harmless  and  indemnify  the  person  whose  name  is  so 
used  from  the  pajment  of  any  costs,  judgment  or  ex- 
penses in  said  suit.  If,  however,  the  plaintiff  shall 
recover  a  judgment  in  such  suit  or  proceeding,  the 
person  so  refusing  to  allow  the  use  of  his  name  shall 
not  be  entitled  to  receive  any  part  thereof  until  he 
pays  the  expense  incurred  in  giving  the  obligation  and 
his  equitable  share  of  the  costs  and  expenses  of  the 
litigation,  including  plaintiff's  attorney's  fees,  and 
discharges  the  obligation. ' ' 

Plaintiff  may  sometimes  avoid  the  necessity  of 
bringing  in  a  party  by  waiving  his  claim  against  him. 
So,  one  who  should  be  defendant  may  authorize  the 
court  to  proceed  without  making  him  a  formal  party, 
by  stipulating  to  that  effect,  or  by  appearing  volun- 
tarily and  answering  the  bill.  While  the  court  may 
dismiss  a  bill  without  prejudice  for  want  of  neces- 
sary parties,  this  course  will  not  be  adopted  except  in 
the  case  of  omission  of  indispensable  parties  who  can- 
not be  brought  in,  or  in  case  parties  have  been  omitted 
wilfully  and  in  bad  faith,  or,  perhaps,  where  a  weak 
case  is  presented  on  the  merits.  The  proper  course  in 
case  of  misjoinder  is  to  amend  by  dismissing  as  to  the 
one  improperly  joined.  Where  the  defect  is  a  non- 
joinder of  necessary  parties,  the  suit  is  merely  sus- 
pended.   The  court  should  not  proceed  until  the  absent 


118 

parties  are  before  it,  but  the  proper  order  is  for  the 
cause  to  stand  over,  with  hberty  to  amend  by  adding 
new  parties,  and  if  that  be  not  done  within  the  time 
fixed,  that  the  bill  be  then  dismissed.  An  appellate 
court  will  not  reverse  a  decree  for  want  of  parties  who 
ought  to  have  been  joined,  provided  sufficient  par- 
ties were  before  the  court  to  sustain  the  decree  as 
rendered;  and  where  the  decree  cannot  be  sustained, 
the  court  will,  generally,  instead  of  dismissing  the  bill, 
remand  it  to  the  court  below,  that  the  omitted  parties 
may  be  brought  in  (16  Cyc.  207). 

Section  6  of  the  Illionis  Chancery  Act  provides  that 
a  guardian  ad  litem  shall  be  appointed  to  act  for  in- 
fants or  insane  defendants,  who  shall  receive  such  rea- 
sonable sum  for  his  charges  as  shall  be  fixed  by  the 
court. 

Practice  in  U.  S.  courts  in  obtaining  jurisdiction 
over  parties  not  found  ivithin  the  district.  When  in 
any  suit  in  equity,  commenced  in  any  court  in  the 
United  States,  to  enforce  any  legal  or  equitable  lien 
or  claim  against  real  or  personal  property  within  the 
district  where  such  suit  is  brought,  one  or  more  of 
the  defendants  is  not  an  inhabitant  of  or  found  within 
the  district,  or  does  not  voluntarily  appear,  the  court 
may  enter  an  order  directing  such  absent  defendant 
to  appear,  plead,  answer  or  demur  to  the  complain- 
ant's bill  on  a  day  therein  designated.  This  order 
must  be  served  on  such  absent  defendant,  if  practi- 
cable, wherever  found ;  or,  where  such  personal  service 
is  not  practicable,  the  order  must  be  published  in  such 
manner  as  the  court  directs.  In  case  such  absent  de- 
fendant does  not  appear,  plead,  answer  or  demur 
within  the  time  limited,  or  within  some  further  time 
to  be  allowed  by  the  court  in  its  discretion,  and  upon 
proof  of  the  service  or  publication  of  said  order,  and 
of  the  performance  of  the  directions  contained  in  the 
same,  it  is  lawful  for  the  court  to  entertain  jurisdic- 
tion, and  proceed  to  the  hearing  and  adjudication  of 
such  suit  in  the  same  manner  as  if  such  absent  de- 
fendant had  been  served  with  process  within  the  said 
district ;  but  such  adjudication,  as  regards  such  absent 


119 

defendant  without  appearance,  affects  only  his  prop- 
erty within  such  district  (Sec.  13  U.  S.  Statute,  in 
force  June  1,  1872). 


FOUMS. 


FORMS  OP  BILL. 

I.     The  Address. 

(In  the  Circuit  Court  of  the  United  States.) 

To  the  Judges  of  the  Circuit  Court  of  the  United  States  for  the 
District  of   

(In  Illinois.) 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  County  of 
in  the  State  of  Illinois,  in  Chan- 
cery sitting. 

II.     The  Introduction. 
(By  a  complainant  under  no  disabilities.) 

Introduction. 

A.   B.,  a  citizen  of  the  state  of ,  residing  in County 

in  said  state  brings  this  bill  against  C.  D.,  a  citizen  of  the  state 

of ,  residing  in County  in  said  state,  and  E.  F.,  a  citizen 

of  the  state  of ,  residing  in County,  in  said  state;   and 

complains   and   avers  as   follows: 

l<!ote.  From  the  fact  that  the  courts  of  the  United  States  are  of 
limited  jurisdiction  and  in  some  cases  suits  must  be  brought  in  the 
district  where  the  defendant  resides,  and  from  the  fact  that  in 
Illinois  under  the  Chancery  Act  the  defendants  must  be  sued  in  the 
county  where  they  reside,  it  follows  that  the  existence  of  juris- 
diction should  be  made  plain  upon  the  face  of  the  record  in  each 
case,  or  the  bill  will  be  demurrable,  or  may  be  dismissed  by  the 
court  on  its  own  motion.  This  can  be  accomplished  by  stating  the 
citizenship,  naming  the  county  of  which  the  defendants  are  resi- 
dents. U.  S.  Equity  rule  20  requires  the  introduction  to  be  as 
above,  and  therefore  it  should  for  the  sake  of  simplicity  be  adopted 
in   other  jurisdictions. 

(By  an  infant  by  his  father  and  next  friend.) 

Your  orator,  A.  B.,  of  the  county  of   , 

an  infant,  by  E.  B.,  of  the  same  county,  his  father  and  next  friend, 
respectfully  represents  unto  your  honor  that,  etc. 

(By  a  corporation.) 

Your  orator,  the  Company,  a  corporation  duly 

established  by  the  laws  of  the  State  of ,  respect- 
fully represents  unto  your  honor  that,  etc. 


122 

III.    The  Prejiises  or  Stating  Part. 
That,  etc.     (Here  insert  all  the  facts  constituting  complainants' 
rights,   and   all   the   facts   constituting  the   defendants'   duties   and 
violation  of  the  complainants'  rights.     (See  text  ante  "stating  part 
of  bill"). 

IV.     The  Confederating  Part. 

(This   part  should  be  omitted.) 

That  the  said  C.  D.,  combined  and  confederated  with  B.  F.  and 
G.  H.,  and  with  divers  other  persons,  at  present  unknown  to  your 
orator,  whose  names,  when  discovered,  your  orator  prays  he  may 
be  at  liberty  to  Insert  herein  with  apt  words  to  charge  them  as 
parties  defendant  hereto; 

V.     Charging  Part. 

(This  part  of  the  bill  may  also  be  omited,  unless  pleader 
desires  to  anticipate  the  defenses  and  to  meet  them  with  counter- 
charges.) 

That  the  defendant  sometimes  alleges  and  pretends  (stating  the 
supposed  ground  of  the  defense),  and  at  other  times  he  alleges 
and  pretends,  etc.;  whereas,  your  orator  charges  the  contrary  thereof 
to  be  the  truth,  and  that  (stating  the  special  matter  with  which 
the  plaintiff  meets  the  defendant's  supposed  case). 

VI.     Jurisdictional  Clause. 

(This  clause  should  be  omitted,  as  unnecessary.) 

Your   orator   further  avers   that   the   said   rights   of   your   orator 

are  remediless,  according  to  the  strict  rules  of  the  common   law, 

and  can  only  have  relief  in  a  court  of  equity,  where  matters  of  this 

nature  are  properly  cognizable  and  relievable. 

or, 
Forasmuch  as  your  orator  is  without  remedy  except  in  a  court  of 

equity   and,   and 

VII.     Interrogating  Part. 

(General  interrogatory.)  To  the  end,  therefore,  (or,  your  orator 
prays)  that  the  defendants  hereinafter  named  may  make  full,  true, 
direct  and  perfect  answers  (but  not  under  oath,  answer  under  oath 
being  hereby  waived)  to  all  the  matters  herein  stated  and  charged, 
as  fully  and  particularly  as  if  the  same  were  hereinafter  repeated, 
and  they  thereunto  distinctly  interrogated;  and  that  not  only  as 
to  the  best  of  their  respective  knowledge  and  remembrance,  but 
also  according  to  the  best  of  their  respective  information  and  belief. 

(Special  interrogatories)  and  more  especially,  that  they  may 
answer  and  set  forth. 

1.  Whether,  etc.  (Here  follow  interrogatories  to  be  answered 
by  the  defendant.) 

2.  Whether,  etc. 


123 

VIII.     Pbayer  for  Relief. 

And  (or,  your  orator  prays)  that  upon  the  final  hearing  of  this 
cause  it  be  ordered  and  decreed,  among  other  things  that  (here 
state  the  particular  relief  asked); 

And  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises  as  may  be  just  and  equitable. 

IX.    Peayee  foe  Process. 

(PEAYEE   FOB    SUMMONS.) 

May  it  please  your  honor  to  grant  the  writ  of  summons  in  chan- 
cery, directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant,  C.  D.,  to  appear 

before  the  said  court,  on  the  first  day  of  the  next  

term  thereof,  to  be  held  at  the  court  house  in  

in  the  county  of ,  aforesaid,  and  then  and  there 

to  answer  this  bill,  etc. 

(prayer  for  subpoena,  in  U.  S.  Court.) 
May  it  please  your  honor  to  grant  unto  your  orator  the  writ  of 
subpcena  of  the  United  States  of  America,  issued  out  of  and  under 
the  seal  of  this  honorable  court,  to  be  directed  to  the  said  C.  D.,  and 
thereby  commanding  them,  and  every  one  of  them,  at  a  certain  day 
and  under  a  certain  penalty,  therein  to  be  specified,  personally  to  be 
and  appear  before  this  honorable  court,  and  then  and  there  to 
answer  all  and  singular  the  premises  (but  not  under  oath  except 
in  response  to  the  special  interrogatories  above,  otherwise  answer 
under  oath  is  hereby  expressly  waived)  and  to  stand  to,  perform 
and  abide  such  order  and  decree  therein,  as  to  your  honor  shall 
seem  meet. 


In  the  older  forms  the  jurisdictional,  interrogatory,  relief  and 
process  clauses,  form  one  grammatical  sentence:     Thus; 

Forasmuch  as  your  orator  is  without  relief  except  in  a  court 
of  equity,  and 

To  the  end  that  said  defendant  may  answer  this  bill,  and 

That  the  court  may  decree  that  said  defendant,  among  other 
things,  come  to  a  just  account,  etc.,  and  that  your  orator  may  have 
such  other  and  further  relief  as  may  be  equitable; 

May  it  please  your  honor  to  grant  unto  your  orator  the  writ  of 
subpcena,  etc. 

Thus,  the  interrogatory  part  is  as  much  entitled  to  be  called  a 
prayer  for  answer  as  the  relief  clause  is  to  be  called  a  prayer  for 
relief.     They   recite   the  object  or   purpose  for   asking  process. 

In  modern  bills,  the  jursdiction  clause  is  omitted  and  answer 
and  relief  are  each  directly  prayed  for.     Thus; 

Your  orator  therefore  prays  that  said  defendant  answer  this 
bill,   etc. 

And  your  orator  prays  that  said  defendants  among  other  things, 
come  to  a  just  and  true  account  with  your  orator,  etc.;   and  that 


124 

your   orator  may   have   such   other   and   further   relief   as   may   be 
equitable. 

PRAYER    FOR   INJUNCTION. 

(After  the  prayer  for  summons  or  subpoena  as  in  the  two  last 
forms,  add  the  following:) 

And  may  it  please  your  honor  to  grant  unto  your  orator  the 
people's  writ  of  injunction,  to  be  directed  to  the  said  C.  D.,  restrain- 
ing him,  his  employes  and  agents,  etc.  (here  insert  the  matter 
sought  to  be  enjoined),  until  the  further  order  of  said  court. 

chancery  summons. 
State  of  Illinois, 
Cook  County, 

The  People  of  the  State  of  Illinois.     To  the  Sheriff  of  said  County, 

Greeting : 

We  command  you  that  you  summon 

if  he  shall  be  found  in  your  county,  per- 
sonally to  be  and  appear  before  the Court  of  Cook  County, 

on  the  first  day  of  the  term  thereof,  to  be  held  at  the  court  house, 

in  Chicago,  in  said  Cook  County,  on  the  first  Monday  of 

next,    to   answer   unto 

in certain Bill    of    Complaint 

filed  in  said  Court,  on  the  Chancery  side  thereof. 

And  have  you  then  and  there  this  writ,  with  an  endorsement 
thereon  in  what  manner  you  shall  have  executed  the  same. 

Witness, Clerk    of    our    said    Court,    and    the 

Seal   thereof,   at   Chicago,   in   said   County,   this day   of 

A.    D.    19... 

Clerk. 

FORM  OF  A  GENERAL  DEMURRER. 

In  the  Court. 

Term,  190... 

A.  B.    ) 
^g       (  In  Chancery. 

p    P     r      Gen.  No. 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  complaint  of  A.  B., 
complainant. 

This  defendant,  by  protestation,  not  confessing  or  acknowledging 
all  or  any  of  the  matters  and  things  in  the  said  bill  of  complaint 
contained,  to  be  true,  in  such  manner  and  form  as  the  same  are 
therein  and  thereby  set  forth  and  alleged,  demurs  to  said  bill,  and 
for  cause  of  demurrer  shows,  that,  etc. 

(Here  set  forth  the  special  cause  of  demurrer.) 

Also  that  the  complainant  has  not,  in  and  by  his  said  bill,  made 
or  stated  such  a  case  as  entitles  him,  in  a  court  of  equity,  to  any 
discovery  or  relief  from  or  against  this  defendant  touching  any  of 
the  matters  contained  in  the  said  bill. 


125 

Wherefore,  and  for  divers  other  good  causes  of  demurrer  appear- 
ing in  the  said  bill  of  complaint,  this  defendant  demurs  to  the  said 
bill,  and  to  all  the  matters  and  things  therein  contained,  and  prays 
the  judgment  of  this  honorable  court  whether  he  shall  be  compelled 
to  make  any  further  or  other  answer  to  the  said  bill,  and  he  prays 
to  be  dismissed  with  his  reasonable  costs  in  this  behalf  sustained. 

By  ,  Solicitor  for  Defendant. 

FORM    OF   PLEA. 

In  the  Court. 

Term,  190... 

In  Chancery. 
Gen.  No. 

The  plea  of  C.  D.,  defendant,  to  the  bill  of  complaint  of  A.  B., 
complainant. 

This  defendant,  by  protestation,  not  confessing  or  acknowledging 
all  or  any  of  the  matters  and  things  in  the  complainant's  said  bill 
mentioned,  to  be  true  in  such  manner  and  form  as  the  same  are 
therein  and  thereby  set  forth  and  alleged,  doth  plead  thereunto, 
and  for  plea  says,  that,  etc.  (Here  set  forth  the  subject-matter  of 
the  plea,  and  conclude  as  follows:)  All  which  matters  and  things 
this  defendant  avers  to  be  true,  and  pleads  the  same  to  the  whole 
of  the  said  bill,  and  demands  the  judgment  of  this  honorable  court 
whether  he  ought  to  be  compelled  to  make  any  answer  to  the  said 
bill  of  complaint;  and  prays  to  be  hence  dismissed  with  his  reason- 
able costs  in  this  behalf  most  wrongfully  sustained. 


By ,  Solicitor  for  Defendant. 

(If  the  plea  is  of  matters  of  fact,  and  not  of  jurisdiction,  add 
affidavit.) 

(Note.)  Signing  of  Plea.  A  plea  must  be  signed  by  the  party, 
as  well  as  counsel;  but  where  it  is  not  sworn  to,  the  signature  of 
counsel  is  sufficient. 

When  plea  must  be  sworn  to.  A  plea  in  bar  of  matters  of  fact 
must  be  sworn  to;  but  pleas  to  the  jurisdiction  of  the  court  or  dis- 
ability of  the  person  of  the  complainant,  or  pleas  in  bar  of  any 
matter  of  record,  or  of  matters  recorded,  as  of  a  record  in  the  court 
itself,  or  any  other  court,  need  not  be  on  oath.     (1  Barb.  117). 

In  all  cases  where  a  plea  is  accompanied  by  an  answer,  it  must  be 
put  in  upon  oath.  A  plea  must  be  verified  by  oath,  although  the 
complainant  has  expressly  waived  an  answer  from  the  defendant  on 
oath.  If  it  is  not  sworn  to,  the  complainant  may,  if  application  is 
made  in  apt  time,  have  it  stricken  from  the  files,  but  the  application 
must  be  made  before  the  argument  of  the  plea. 


126 


FORM    OF    ANSWEB. 

(Note.) — An  answer  always  begins  with  its  title,  specifying  of 
which  of  the  defendants  it  is  the  answer,  and  the  names  of  the  com- 
plainants in  the  suit  in  which  it  is  filed  as  an  answer.  It  is  irregu- 
lar, and  may  be  rejected,  if  it  is  not  properly  entitled,  and  does  not 
show  what  bill  it  purports  to  answer. 


I.     The  Titles  of  Answers. 
(Title  of  answer  by  one  defendant.) 
The  answer  of  C.  D.,  the  defendant,  to  the  bill  of  complaint  of 
A.   B.,  the  complainant. 

If  the  defendant  was  misnamed  in  the  bill,  he  may  in  the  body 
of  his  answer  correct  it  thus:  the  answer  of  Walter  Holden  (in  the 
bill  by  mistake  called  Willie  Holden).  Atty.  Gen.  v.  Worcester,  1 
Coop.  t.  Cott.  18. 


(Title  of  answer  to  amended  bill.) 

The  answer  of  C.  D.,  the  defendant,  to  the  amended  bill  of  com- 
plaint of  A.  B.,  the  complainant. 


(Title  of  answer  where  exceptions  have  been  taken  to  a  form  of 
answer,  and  the  bill  has  also  been  amended.) 
The  further  answer  of  C.  D.,  one  of  the  defendants  to  the  original 
bill,  and  his  answer  to  the  amended  bill  of  complaint  of  A.  B.,  the 
complainant. 


(Title  of  amended  answer.) 
The  amended  answer  of  C.  D.,  the  defendant,  to  the  bill  of  com- 
plaint of  A.  B.,  the  complainant. 

(Title  of  answer  by  infants  by  their  guardian  ad  litem.) 
The  answer  of  C.  D.,  an  infant  under  the  age  of  twenty-one  years, 
by  E.  F.,  his  guardian  ad  litem,  to  the  bill  of  complaint  of  A.  B., 
the  complainant. 

II.  The  Commencement  of  an  Answer. 
(Introduction  to  an  answer  of  one  defendant.) 
This  defendant,  now  and  at  all  times  hereafter,  saving  to  himself 
all  manner  of  exception  which  can  or  may  be  had  or  taken  to  the 
many  errors,  uncertainties  and  other  imperfections  in  the  said  bill 
contained,  for  answer  thereunto,  or  to  such  parts  thereof  as  are 
material  or  necessary  for  him  to  make  answer  unto,  says  etc. 

III.     Common  Forms  in  Framing  Answers. 

And  this   defendant,   further   answering,  says  that  he   has  been 
informed  and  believes  it  to  be  true,  that,  etc.; 

or, 


127 

This  defendant  admits  that,  etc.; 

or. 
This  defendant,  further  answering,  denies,  etc.; 

or. 
This  defendant,  further  answering,  says  that  he  is  ignorant  of  and 
does  not  believe,  and  therefore  denies  that,  etc. 

IV.     Conclusion  of  Answee. 

And  this  defendant  denies  all  other  matters,  causes  or  things  in 
the  complainant's  said  bill  of  complaint  contained,  material  or  neces- 
sary for  this  defendant  to  make  answer  unto  and  not  herein  and 
hereby  well  and  sufficiently  answered,  confessed,  traversed  and  avoided 
or  denied;  all  which  matters  and  things  this  defendant  is  ready 
and  willing  to  aver,  maintain  and  prove,  as  this  honorable  court 
shall  direct. 

And  this  defendant,  further  answering,  denies  that  the  com- 
plainant is  entitled  to  the  relief,  or  any  part  thereof,  in  the  said 
bill  of  complaint  demanded,  and  prays  the  same  advantage  of  this 
answer  as  if  he  had  pleaded  or  demurred  to  the  said  bill  of  com- 
plaint; and  prays  to  be  dismissed  with  his  reasonable  costs  and 
charges  in  this  behalf  most  wrongfully  sustained. 

C.   D. 
Solicitor  for  Defendant. 

(If  answer  is  required  to  be  under  oath,  the  following  affidavit 
should  be  attached : ) 

affidavit  to  answer. 

State  of 


County  Of  '  **• 

On  this day  of ,  19 ... ,  before  me 

personally  appeared  C.  D.,  and  made  oath  that  he  has  read  (or  heard 
read)  the  above  answer,  subscribed  by  him,  and  knows  the  contents 
thereof,  and  that  the  same  is  true,  of  his  own  knowledge,  excei^t 
as  to  matters  which  are  therein  stated  to  be  on  his  information  and 
belief,  and  as  to  those  matters,  he  believes  them  to  be  true. 

Subscribed  and  sworn  to  before  me  this day  of 19.  . 


Clerk  of  the  Court. 


The  answer  must  be  signed  by  the  defendant  putting  it  in,  unless 
leave  has  been  obtained  to  file  an  answer  not  signed,  because  orig- 
inally the  answer  was  always  under  oath  and  was  testimony  in 
the  cause.  (Dennison  v.  Bassford,  7  Paige  370).  The  answer  must 
also  be  signed  by  counsel.  When  such  counsel  are  a  firm,  the  firm 
signature  may  be  used.  (Bishop  v.  Willis,  5  Beav.  83  n).  The 
signing  of  the  answer  by  the  defendant  may  be  waived  by  the 
complainant,  and  if  an  unsigned  answer  is  put  in  and  the  complain- 
ant files  a  replication,  that  step  on  his  part  will  be  held  to  be  such  a 
waiver.     (Fulton  Bank  v.  Beach,  2  Paige  307).     The  court,  under 


128 

special  circumstances  will  permit  the  defendant  to  file  an  answer 
not  signed  by  him  as  when  he  resides  at  a  distance,  or  has  gone 
abroad  before  an  answer  could  be  prepared  or  the  like.  (Dumond 
V.  Magee,  2  Johns.  Ch.  240).  The  answer  of  a  corporation  is  put 
in  under  the  corporate  seal  and  not  under  oath.  If  it  is  put  in 
not  under  seal  it  will  be  taken  from  the  files  as  irregular.  (Ran- 
son  V.  Stonington  Sav.  Bk.  2  Beasley,  13  N.  J.  Eq.  212;  Super- 
visors V.  Miss.  &  W.  R.  Co.,  21  111.  338.)  But  unless  the  answer  of 
the  corporation  is  sworn  to  it  cannot  be  made  the  basis  of  a 
motion  to  dissolve  a  temporary  injunction;  an  injunction  will  not 
be  dissolved  upon  the  filing  of  an  answer  not  on  oath  denying  the 
equities  of  the  Bill.     (Fulton  Bk.  v.  New  York,  etc.,  1  Paige  311). 

Therefore,  if  an  injunction  bill  waives  an  answer  under  oath, 
the  defendant  may  still  put  in  an  answer  under  oath  and  so  treat 
it,  for  the  purpose  of  moving  to  dissolve  the  injunction  granted  on 
the  bill.     (Doughrey  v.  Topping,  4  Paige  94). 

If  the  answer  must  be  sworn  to  it  should  be  done  before  the 
proper  officer.  Who  is  such  proper  officer  depends  upon  the  provisions 
of  the  local  statute  and  the  rules  of  the  court.  (Sitlingtou  v.  Brown, 
7  Leigh   (Va.)   271). 

rOBM   or   DISCLAIMER. 

(Title   of   cause.) 

The  disclaimer  of  C.  D.,  one  of  the  defendants,  to  the  bill  of 
complaint  of  A.  B.,  the  complainant. 

This  defendant,  saving  and  reserving  to  himself,  now  and  at  all 
times  hereafter,  all  manner  of  advantage  and  benefit  of  exceptions 
and  otherwise  that  can  be  or  may  be  had  and  taken  to  the  many 
untruths,  uncertainties  and  imperfections  in  the  said  complainant's 
bill  of  complaint  contained,  for  answer  thereunto,  or  unto  so  much, 
or  such  part  thereof  as  is  material  for  this  defendant  to  make 
answer  unto,  says,  that  he  fully  and  absolutely  disclaims  all  manner 
of  right,  title  and  interest  whatsoever  in  and  to  the  (here  describe 
the  property  in  dispute)  in  said  bill  mentioned,  and  in  and  to  every 
part  thereof. 

And  this  defendant  denies  all  other  matters,  causes  and  things  in 
the  complainant's  said  bill  of  complaint  contained,  material  or  neces- 
sary for  this  defendant  to  make  answer  unto,  and  not  herein  and 
hereby  well  and  sufliciently  answered,  confessed,  traversed  and 
avoided  or  denied;  all  which  matters  and  things  this  defendant 
is  ready  and  willing  to  aver,  maintain  and  prove,  as  this  honorable 
court  shall  direct. 

And  this  defendant,  further  answering,  denies  that  the  com- 
plainant is  entitled,  as  against  this  defendant,  to  the  relief,  or  any 
part  thereof,  in  the  said  bill  of  complaint  demanded,  and  prays  the 
same  advantage  of  this  answer  as  if  he  had  pleaded  or  demurred 
to  the  said  bill  of  complaint;   and  prays  to  be  dismissed  with  his 


129 


reasonable  costs  and  charges  in  this  behalf  most  wrongfully  sus- 
tained. 

C.   D. 

,   Solicitor  for  Defendant. 

(Add   affidavit,  if  required,  as  in  answer.) 

FORM  OF  GENERAL  REPLICATION. 

In  the  Court. 

Term,  190. .. 


I 


A.  B. 

vs.      \.  In  Chancery. 
C.  D.    j 

The  replication  of  A.  B.,  complainant,  to  the  answer  (or,  plea)  of 
C.  D.,  defendant. 

This  repliant,  saving  and  reserving  unto  himself  all  and  any 
manner  of  advantage  of  exception  to  the  manifold  insufficiencies  of 
the  said  answer,  for  replication  thereunto,  says:  That  he  will  aver 
and  prove  his  said  bill  to  be  true,  certain  and  sufficient  in  law  to 
be  answered  unto;  and  that  the  said  answer  of  the  defendant  is  un- 
certain, untrue  and  insufficient  to  be  replied  unto  by  this  repliant; 
without  this,  that  any  other  matter  or  thing  whatsoever  in  the 
said  answer  contained,  material,  or  effectual  in  law  to  be  replied 
unto,  confessed  and  avoided,  traversed  or  denied,  is  true,  all  which 
matters  and  things  this  repliant  is  and  will  be  ready  to  aver  and 
prove  as  this  honorable  court  shall  direct,  and  humbly  prays  as  in 
and  by  his  said  bill  he  has  already  prayed. 
Solicitor  for  Complainant. 

The  replication  may  be  signed  by  either  the  complainant  or  the 
solicitor     (1  Barb.  250). 

Judge's  Certificate  of  Evidence  Heard  in  Open  Court. 
State  of 


County  of       ''  ^^• 

In  the  Court  of  County. 

To  the  October  Term  thereof,  A.  D.    19     . 

A.  \    Gen.  No. 
-vs.-       y    Term  No. 

B.  \    In  Chancery. 

Be  it  remembered,  and  certified  that  on  the  hearing  of  this  cause, 
at  the  above  term  of  court,  upon  the  bill  of  complaint,  answer  to 
said  bill,  and  the  replication  thereto,  the  parties  introduced  the 
following  evidence,  to-wit: 

To  maintain  the  issues  on  his  part,  the  complainant  introduced 
in  evidence  on  his  behalf,  as  follows,  that  is  to  say:  C.  D.,  a  witness 
produced  on  his  part,  was  sworn  and  testified  as  follows:  (Here 
Insert  his  testimony.)  And  the  complainant  further  offered  in 
evidence  one  trust  deed  and  four  promissory  notes  in  words  and 
figures  as  follows:     {Here  copy.) 


130 

And  further,  E.  F.,  a  witness  on  the  part  of  the  defendant,  was 
sworn  and  testified  as  follows:  (Here  insert  his  testimony  in  full). 
And  further  the  defendant  offered  in  evidence  a  certain  deed  in 
words  and   figures,   as  follows,   to-wit:      (Here  insert  copy.) 

State  of       ) 
County  of       j"  ^^' 

I,    a   shorthand    reporter,   do   hereby   certify 

that  the  above  and  foregoing  is  a  true  and  correct  transcript  of  all 
the  evidence  taken  in  shorthand  upon  the  examination  of  wit- 
nesses in  open  court,  and  of  the  proceedings  had  upon  the  hearing 
of  this  cause. 

Dated   this day  of A.  D.    19     . 


Subscribed  and  sworn  to  before  me,  this. .  .day  of. . .,  A.  D.    19 


Notary  Public. 

Be  it  further  remembered,  and  certified,  that  the  foregoing  was 
all  the  evidence  introduced  on  the  hearing  of  said  cause. 

And,  inasmuch  as  the  matters  above  set  forth  do  not  fully 
appear  of  record  in  said  cause,  the tenders  this  certifi- 
cate of  evidence,  and  prays  that  the  same  may  be  certified  under 
the  hand  and  seal  of  the  judge  of  this  court,  and  thereby  made  a 
part  of  the  record  in  said  cause,  and  it  is  accordingly  certified  and 
made  a  part  of  the  record  of  said  cause. 

Dated  this A.  D.  19 

Judge. 

ORDER    or    REFERENCE    TO    TAKE    PROOFS    AND    TO    REPORT    SAME    TOGETHER 
WITH    CONCLUSIONS    OF   FACT    AND    OF   LAW    THEREON. 

(Title  of  cause  and  of  court.) 

This  cause  coming  on  to  be  heard  upon  motion  of   

solicitor  for ;    upon  consideration  thereof, 

It  is  ordered   that  this  cause  be  and   hereby  stands   referred   to 

,  a  master  in  chancery  of  this  court,  to  take  the 

evidence  according  to  law  and  to  report  the  evidence  to  this  court, 
together  with  his  conclusions  of  fact  and  of  law  thereupon,  with 
all  reasonable  speed;  to  examine  the  questions  in  issue  in  this 
cause  and  report  his  conclusions  thereon;  to  report  his  conclusions 
as  to  whether  the  evidence  and  pleadings  entitle  the  complainant 
or  other  parties  to  the  relief  or  any  part  thereof  prayed  for  in 
their  respective  pleadings,  or  to  any  other  relief;  and  to  perform 
all  such  other  lawful  services  as  may  be  necessary  or  proper  under 
the  premises.  And  for  the  better  taking  of  the  evidence  all  parties 
not   in   default  shall    introduce   their   evidence   before  said   master 


131 

with  all  reasonable  speed,  and  shall  produce  before  him  all  books 
and  writings  in  their  possession  or  power  which  contain  evidence 
pertinent  to  the  issues  and  matters  in  reference;  and  said  master  is 
hereby  authorized  and  directed  to  cause  to  come  and  be  produced 
before  him  according  to  law,  all  proper  witnesses  and  books  and 
writings  requested  by  the  parties. 
•    Dated  this day  of 19.. 


Judge. 


The  above  form  is  drafted  with  reference  to  section  39,  Illinois 
Statute,  "Chancery;"  section  20,  Illinois  Statute,  "Fees  and  sala- 
ries;" section  9,  Illinois  Statute,  "Evidence;"  section  6,  Illinois 
Statute,  "Masters  in  Chancery."  It  is  a  good  form  for  any  state  or 
for  the  Federal  courts,  if  by  warrant  of  the  statute,  or  by  the  con- 
sent of  parties,  the  entire  cause  is  referred  to  a  master  to  take  and 
report  the  evidence  together  with  his  conclusions  of  fact  and  law 
thereon. 

(Title  of  cause  and  of  court.) 

OBDEB  OF  KEFEBENCE  TO  STATE  ACCOUNT. 

This  cause  coming  on  for  further  hearing  upon  the  bill  of  com- 
plaint, the  answer  of  the  defendant  to  said  bill,  the  replication  of 
the  complainant  thereto,  and  the  testimony  taken  and  reported  by 
the  Master  in  Chancery  under  a  former  order  of  the  Court,  and  the 
Court  having  heard  the  arguments  of  counsel  for  the  respective 
parties,  and  being  fully  advised  in  the  premises,  doth  find,  etc. 
(here  insert  the  findings  of  the  Court  as  to  the  facts  and  the  rights 
of  the  parties  and  the  rule  adopted  in  stating  the  account).  And 
in  further  consideration  of  the  premises,  it  is  ordered  that  this 
cause  be  again  referred  to  the  Master  in  Chancery  of  this  Court, 
to  take  the  books  of  account  and  all  papers  referred  to  in  the 
pleadings  and  report  herein  heretofore  filed,  and  state  the  ac- 
counts between  said  parties,  taking  and  reporting  such  evi- 
dence, if  any,  as  may  be  further  offered  by  either  of  the  parties 
to  this  suit,  outside  of  the  said  books  of  account,  documents, 
etc.,  and  report  the  said  evidence  and  statement  of  account  to  the 
Court  as  soon  as  practicable,  together  with  his  conclusions  of  fact 
and  of  law  thereon.  And  for  the  better  taking  of  such  evidence 
and  stating  such  account,  the  Master  shall  cause  such  witnesses  as 
the  parties  may  desire  to  appear  and  give  evidence  before  him, 
and  shall  cause  the  parties,  or  either  of  them,  to  produce  before 
him  upon  oath,  all  such  deeds,  books,  papers  and  writings  in  their 
possession  or  power,  containing  evidence  pertinent  to  the  issues 
and  matters  in  reference,  as  may  be  proper  and  as  may  be  desired 
by  the  parties;  and  said  witnesses  are  to  be  examined  upon  oral 
or  written  interrogatories  as  the  Master  shall  direct. 

Dated  this day  of 19     . 

Judge. 


132 

FORM    OF    ORDER    OF    REFERENCE    AS    TO    ALIMONY. 

(Title  of  court  and  cause.) 

It  is  ordered  that  tlie  said  defendant  pay  to  the  said  complainant, 
or  her  solicitor,  the  sum  of  $100,  in  and  towards  defraying  the  costs 
and  expenses  of  this  suit,  and  that  execution  may  issue  therefor. 

It  is  further  ordered  that  this  cause  be  referred  to 

one  of  the  masters  in  chancery  of  this  court,  to  take  evidence  and 
report  his  conclusion  as  to  what  would  be  a  reasonable  sum  to  be 
allowed  for  the  support  of  the  said  complainant  during  this  suit, 
and  also  for  the  support  during  this  suit,  of  the  children  of  the 
marriage  now  in  her  custody  and  charge. 

It  is  further  ordered  that  said  master  report  his  recommendation 
as  to  the  times  and  manner  in  which  the  said  sums  should  be  paid 
to  the  complainant. 

Dated  this day  of 19     . 


Judge. 


Master's  Notice  of  Day  for  Evidence. 


To 

Please  take  notice,   that  by   virtue   of  an  order   of   reference   en- 
tered in  the  above  entitled  cause,  on  the day  of ,  19.  .,  I 

will,  at  ten  o'clock  in  the  morning,  on  the.... day  of....,  19..,  at 

my  office.  Room street,  Chicago,   in  said 

County,  fix  a  day  to  proceed  with  the  taking  of  testimony  or  evi- 
dence on  such  reference;  and  on  the  day  so  fixed  I  shall  proceed 
with  the  taking  of  such  testimony  or  evidence. 

Chicago,  the day  of 19 

(Signed)  

"Master  in  Chancery  of  the Court  of  Cook   County." 


State  of 
County  of 


master's  subpoena  duces  tecum. 

I  ss. 


IN    THE    name    of   THE    PEOPLE    OF   THE    STATE    OF   ILLINOIS. 

To    


You  are  Hereby  Commanded  To  appear  before  me,  at  my  office, 

A"o Street,   in   the   City  of 

said    County,    on the 

day   of A.   D.   19 at 

o'clock M.,    then   and   there    to    testify    the    truth 

in  a  suit  wherein 

Complainant ,and    

Defendant,  and  bring  with  you  and  then  and  there  produce  a 
certain  (book  or  writing,  give  description  of  same)  and  all  other 
books  or  writings  which  contain  evidence  pertinent  to  the  issues  in 


133 

said  cause;  and  this  you  shall  in  no  wise  omit,  under  the  penalty 
of  the  law. 

04ven  under  my  hand,  this day  of A.  D. 

19     . 


Master   in    Chancery    of   the Court    of County. 

State  of  Illinois,      1 
County  of  Cook.  ( 


being  duly  sworn,  on  oath,  says  that  he  served  the  within  Writ  by 

reading  the  same  to  and  leaving  a  copy  thereof  with 

on  the 

day   of 19 ... ,   in   said 


Sworn  to  before  me  this day  of 19 

Fees: 


Mileage  $ 

Service  $ 

Total  $ 


Note:  For  a  witness  subpoena,  omit  the  part  referring  to  bring- 
ing books  and  papers. 

For  form  of  suggestions  as  to  what  should  be  the  Master's  find- 
ings of  fact  and  of  law  in  his  report,  see  text  ante,  "Master's  in 
Chancery." 

FORM   OF   master's   REPORT   OF   EVIDENCE   AND   CONCLUSIONS   OF   FACT   AND 

LAW  THEREON. 

(Title  of  court  and  cause,  and  address  to  the  court.) 
Report  of Master  in  Chancery. 

Pursuant  to  an  order  of  reference  hertofore  entered  herein,  I, 
the  said  master,  do  certify  and  report  as  follows: 

That  upon  due  notice  to  all  the  parties  hereto,  and  in  due  form 
of  law,  and  having  caused  to  come  before  me  and  be  produced  all 
such  witnesses  and  books  and  writings  as  the  respective  parties 
desired  and  made  known  to  me;  witnesses  were  duly  sworn  and 
testified,  evidence  was  heard  and  received,  and  proceedings  were 
had  as  more  fully  appears  from  the  record  and  transcript  of  pro- 
ceedings and  evidence  annexed  as  a  part  of  this  report,  which  said 
record  and  transcript,  together  with  the  exhibits  therein  mentioned, 
(and  together  with  such  depositions,  affidavits  and  other  documents 
as  were  lawfully  filed  in  said  cause  and  were  produced  before  me  as 
evidence),  contains  all  the  evidence  submitted  before  said  master, 
in  said  cause.  And  from  the  competent  evidence  so  submitted  and 
from  the  confessions  under  the  pleadings  in  said  cause,  said  master 


134 

finds  the  following  matters  of  fact  to  be  true:  (Here  set  forth 
the  conclusions  of  fact  found  by  the  master.) 

Upon  the  facts  aforesaid,  and  from  the  pleadings  filed  in  said 
cause,  the  said  master  finds  the  following  conclusions  of  law: 
(Here    set    forth    the    conclusions    of    law    found    by    the    master.) 

Said  master  therefore,  upon  the  findings  of  fact  and  of  law 
aforesaid,  concludes  that  the  equities  of  this  cause  are  with  the  com- 
plainant, and  that  he  is  entitled  to  the  relief  prayed  for  in  his 
bill,  except  as  otherwise  found  herein. 

All  of  which  is  respectfully  submitted. 

Dated  this day  of ,  A.  D.  19.. 


Master  in  Chancery  of  the Court  of  Cook  County,  Illinois. 

(Then  annexed  to  the  report  follows  the  report,  record  and  tran- 
script of  evidence. 

(Form  of  Master's  Report  of  Evidence.) 

State   of "i 

County  of j 

In   the Court 

In  Chancery. 
Adams  et    al.       ) 

vs.  I    Gen.  No.  12,860. 

Brown  et    al.        \ 

Report,  record,  and  certificate  of  proceedings  and  evidence  in  the 

above  entitled  cause  had  and  taken  before 

Master  in  Chancery  of  said  court  in  his  office,  suite Street, 

on , 19 .  . ,  at o'clock pursuant  to  an 

order  of  reference  heretofore  entered: 

Present, ,  Esq.,  representing  the  complainant;    , 

Esq.,  representing 

Mr :     "I  now  file  with  the  master  a  copy  of  the  notice  for 

this  hearing  showing  signed  receipt  of  notice  by and 

proving  by  affidavit  delivery  of  notice  to I  also  file 

with  the  master,  the  master's  writ  of  subpoena  with  the  endorse- 
ment showing  lawful  service  of  same  on and 

to  testify  at  this  meeting." 

Master:     Let  them  be  placed  on  file. 

Whereupon  Mr called as  a  witness,   who 

after  being  duly  sworn  by  the  master,  testified  as  follows: 

Mr :      State  your  name,  residence  and  occupation.     A. — 

John  Armstrong,  753  West  Monroe  St.,  Chicago,  shoe  merchant,  etc., 
etc.  (Here  follows  the  testimony  in  the  form  of  question  and  an- 
swer). 

Whereupon: 

Mr.  H.  W.  Rice,  of  Rice  and  Carter: 

If  you  are  through  with  the  direct  examination,  I  will  ask  Mr. 
Armstrong  a  few  questions  upon  cross-examination: 


135 

Q.  Mr.  Armstrong,  please  state  who  was  present  when  the  con- 
tract marked  exhibit  "D,"  which  I  hand  you,  was  signed?  A. — Mr. 
Carter,   Mr.   Brown  and  myself. 

Etc.,  etc.  (Here  follows  cross-examination,  and  then  follows  the 
re-direct    examination). 

(Signed)         John   Armstrong. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  June,  1905. 


Master  in  Chancery  of  the Court  of  Cook  County,  Illinois. 

Whereupon  Mr called as  a  witness,  who, 

after  being  duly  sworn  by  the  master,  testified  as  follows: 

Mr :     State  your  name,  residence  and  occupation. 

Etc.,  etc. 


(Signed   and   sworn   to   as   above). 

Master's  Certificate  of  Evidence.     (At  the  End  of  His  Report  of 

Evidence). 

I, Master  in  Chancery  of  the Court  of 

county do  hereby  certify  that  each  of  the  witnesses  afore- 
said, before  testifying,  was  by  me  first  duly  sworn  or  affirmed 
according  to  law,  to  testify  and  speak  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  in  relation  to  the  matters  in  reference 
and  in  ansv/ering  all  questions  put  to  them;  that  the  testimony  of 
each  of  them  was  reduced  to  writing,  and,  after  being  read  over 
by  each  of  them,  the  same  was  duly  subscribed  and  sworn  to  or 
affirmed  by  each  of  said  witnesses,  as  shown  by  the  several  jurats 
thereto  attached;  and,  where  no  such  signatures  and  jurats  or 
affirmations  appear,  the  signatures  and  jurats  or  affirmations  thereto 
were  waived  by  all  the  parties. 

And  I  further  certify  that  the  foregoing  record  and  transcript 
of  the  evidence  of  said  witnesses,  together  with  the  exhibits  herein- 
before referred  to  and  attached,  is  a  full,  complete  and  true  tran- 
script of  all  the  proceedings  and  evidence  taken  before  me  in  said 
cause. 

Dated  this day  of ,  A.  D.  19. . 


Master  in  Chancery  of  the  Superior  Court  of  Cook  County. 

FORM    OF    master's    CERTIFICATE    OF    FEES. 

State  of        ^ 
County  of      \  ^^^ 

In  the Court  in  Chancery. 

vs.  {.    Gen.  No 

Master's  Certificate  of  Services.  Pees  and  Charges. 
I  Hereby  Certify  that  I  performed  the  following  items  of  services 
and  necessarily  made  the  following  expenditures  under  the  special 


136 

order  of  reference  heretofore  entered  in  the  above  entitled  cause, 
and  that  such  services  necessarily  consumed  the  following  amounts 
of  my  time: 

^        .  ■       ^   ,       i  FEES     FIXED     BY     STATUTE. 

Services    in    tak-   \ 

ing  and  report-  •/         I   have  taken   and  reported folios   of 

ing    testimony.  ^^^    ^^^^^    ^^^^^    ^^    ^5    ^^^^^ ^ 


Stenographer's 
services. 


I  hereby  certify  that  a  stenographer  was  nec- 
essarily employed  and  that  said  stenographer  re- 
ported   folios  of  100  words  each $ 


Statutory  s  e  r  v- 
ices  Ijnowu  as 
"not  enunier-  | 
ated  by  stat-  . 
ute  ;"  imposed  | 
by  the  special  J 
order  of  refer-  i 
ence    herein. 

(III.  Stat.:  "Fees 
and  Salaries," 
Sec.  20.) 


Services  examin- 
ing questions  I 
in  issue,  and  J 
reporting  con-  ] 
elusions  there-  | 
on.  I 


FEES  TO  BE  ALLOWED  BY  COURT. 

(1)  Time    spent    by    Master    in    hearing    and 

granting  motions  for  continuance hour's 

time  at  $ per  hour $ 

(2)  Time  spent  ....days,  at  $....per  day,.. 
hours,  at  $ per  hour,  in  hearing  argu- 
ments,     $ 

(3)  After  the  report  was  made,  time  spent.. 

days,    at    $ per    day, hours,    at 

$ per    hour,    in    hearing    and    considering 

objections  to  the  report  herein, $ 

(4)  Time  spent days,  at  $ per  day, 

hours,  at  $ per  hour,  in  reading  briefs 

and  authorities  presented,  in  determining  and 
formulating  findings  of  fact,  and  in  determining 
and  formulating  conclusions  of  law,  and  in  draft- 


l^    ing  the  report  herein,. 


Default  case,  ( 
finding  and  re-  J 
porting  c  o  n-  ^ 
elusions.  I 

I    respectfully    ask    the    Court    to    allow,    tax    and    fix    the    above 
charges. 
Dated,  this day  of ,  190  . 


Master  in  Chancery  of  the Court  of County, 

Illinois. 

The  above  charges  are  hereby  allowed,  taxed  and  fixed  as  costs, 
as  and  for  the  master's  fees  and  charges  under  the  order  of  ref- 
erence herein. 


Judge. 


137 

Order  Directing  Master's  Fees  to  be  Paid. 
State  of        •\ 
County  of       c  ^^■ 

In  the Court. 

In  Chancery. 

A.      \  Term  No 

vs.     V. 
B  et  al.    j  Gen.  No 

And  now  comes ,  the  master  to  whom 

this  cause  stands  referred,  and  it  appear- 
ing to  the  Court  that  due  notice  has  been  given  to  the  solicitors 
of  complainant  and  defendant  herein,  on  motion  of  said  Master. 

It  is  Hereby  Ordered,  Adjudged  and  Decreed  That  complainant 
A.  and  defendant  B  are  each  primarily  liable  to  advance  and  pay 
to    said    Master   one-half   of   his    fees    and    charges,    amounting   to 

$ ,    heretofore   allowed   and   taxed,   and    said    complainant 

and  said  defendant  are  hereby  ordered  to  pay  to  said  Master 
within  five  days  the  sums  primarily  due  from  them  to  said  Master 
as  aforesaid,  and  this  without  prejudice  to  the  final  awarding 
of  costs  herein.  If  either  of  said  parties  fails  to  pay  his  respect- 
ive share  according  to  this  order  within  five  days,  the  other 
party  may  advance  the  defaulting  party's  share;  whereuupon,  and 
in  case  both  parties  default  in  respect  to  this  order,  the  Court 
will  enter  such  further  order  and  decree  as  may  be  just  and  proper 
under  the  circumstances. 

Dated  this day  of 19 . . 


Judge. 
Plan  of  Master's  Foreclosure  Report. 

1.  Examine  pleadings  to  see  if  bill  is  traversed. 

2.  Examine  summons  and  returns  therein  for  parties  actually 
subject  to  the  court's  jurisdiction  for  caption  of  report. 

3.  Study  testimony  and  examine  exhibits. 

4.  Dictate  report — finding  as  facts  only  things  proved  by  testi- 
mony or  exhibits;  facts  not  proved  before  Master  but  confessed  by 
default,  can  be  included  in  "i"  herein. 

(a)  Find  facts  as  to  note  and  interest  notes  as  alleged  in  bill;  if 
bill  is  slovenly,  find  facts  from  original  note. 

(b)  Find  facts  as  to  execution,  delivery,  acknowledgment  and  re- 
cording of  trust  deed,  as  alleged  in  bill;  if  bill  is  slovenly,  from 
original  trust  deed  or  mortgage. 

(c)  Find  facts  as  to  provisions  of  trust  deed,  either  as  alleged 
in  bill,  or  quote  from  the  trust  deed.  If  quoted,  preface  the  fol- 
lowing form: 

That  said  trust  deed  among  other  things  contains  the  follow- 
ing words,  figures  and  provisions: 


138 

Always  state  provision  as  to  release  and  waiver  of  homestead; 
the  bill  often  omits  this.  The  provisions  of  the  trust  deed  cited 
should  cite  from  the  T.  D.,  also  the  covenants,  if  any  are  broken, 
penalties,  if  any  are  incurred,  other  rights,  if  any  are  violated, 
solicitor's  fees,  etc.,  and  the  defeasance  clause. 

Note:  A  properly  acknowledged  conveyance  like  a  trust  deed  or 
mortgage  or  certified  copy  thereof,  is,  without  further  proof  of  execu- 
tion, prima  facie  evidence,  and,  of  itself,  proves  all  facts  under  a,  b 
and  c,  above.  (111.  Stat.  Conveyances,  Sec.  20).  It  can  be  overcome 
only  by  a  sworn  pleading  denying  execution  of  the  instrument,  (Dean 
V.  Ford,  180  111.  309)  and  upon  proof  sufficient  to  destroy  this 
prima  facie  proof.     (Wolcott  v.  Lake  View  B.  &  L.,  59  111.  App.  415.) 

(d)  Find  facts  as  to  who  is  the  legal  owner  of  the  principal  and 
interest  notes  at  time  when  bill  was  filed  and  up  to  time  of  report. 

Note:  Possession  of  note  and  mortgage  is  strong  presumptive 
evidence  of  ownership.  (Lambert  v.  Hyers,  22  111.  App.  238;  Dum- 
lop  V.  Lamb,  182  111.  319.) 

(e)  Find  facts  as  to  payments  by  defendant.  Note  and  mortgage 
are  prima  facie  evidence  of  amount  due.  (Dorn  v.  Ross,  177  111. 
225;   Ording  v.  Burnet,  178  111.  28.) 

(f)  Find  facts  as  to  defaults  by  defendant  in  failing  to  comply 
with  provisions   of  T.   D. 

(g)  Find  facts  as  to  expenditures  by  complainant,  for  taxes, 
insurance,  etc.,  etc.,  on  account  of  default  therein  by  defendant,  and 
find  as  to  "cash  advanced  for  abstract  continuation  in  order  to 
properly  begin  this  suit,"  and  whether  justified  by  the  provisions 
of  the  T.  D. 

(h)  "That  there  is  due  from  said to  said on  ac- 
count of  the  provisions  of  said  notes  and  trust  deed  and  on  account 

of  the  foregoing,  the  sum  of  $ as  appears  from  the  following 

items: 

(Make  tabular  statement  of  amounts  due.) 

Principal  note  No.  1  due  Aug.  1,  1908  $ 

Interest  thereon  at per  cent. 

from to 

Interest    note    due   Feb.    1,    1908.  

Interest  thereon  at per  cent. 

from to 

Interest  note  due  Aug.   1,  1907.  

Interest  thereon  at per  cent. 

from to 

Jan.  7,  1908,  cash  advanced  for 

taxes  1906  

Interest  thereon  at per  cent,  from 

Jan.    7,    1898,    to 

Feb.  10,  1898,  cash  advanced 

for   insurance,  

Interest  thereon  at per  cent,  from 

Feb.   10,   1898,   to 


139 

Mar.  7,  1898,  cash  advanced  for 
continuance  of  abstr.   of  title 

Interest  thereon  at per  cent,  from 

Mar.  7,  1898,  to 


Total. 


(Note:  The  Illinois  statute  requires  interest  to  be  calculated  ac- 
cording to  the  "six  per  cent,  method,"  a  month  being  one-twelfth  of  a 
year  and  a  day  one-thirtieth  of  a  month.)      111.   Stat.  "Interest." 

"Also  the  further  sum  of  $ incurred  by  said as  his 

solicitors'  fees  herein,  which  sum  last  aforesaid  is  the  sum  expresslj^ 
provided  for  in  said  trust  deed,  and  said  master  finds  the  same 
to  be  a  just  and  customary  fee  for  the  services  rendered  by  com- 
plainant's solicitor  herein;  (or,  if  the  trust  deed  provides  for  a 
'reasonable'  fee,  'which  sum  said  master  finds  from  the  evidence 
to  be  a  reasonable  charge  for  the  services  performed  by  the  com- 
plainant's solicitor')." 

(i)  Said  master  further  finds  and  concludes  that  in  law  and  in 
fact  said  complainant, has  a  lien  on  the  premises  afore- 
said for  the  amounts  found  to  be  due  him  as  aforesaid;  that 
each  and  every  material  allegation  in  complainant's  bill,  except 
as  otherwise  found  in  this  report,  is  admitted  by  the  pleadings  to 
be  true  (or)   is  by  default  taken  and  confessed  as  true  herein;  that 

the   equities  in   this   cause   are   with   said  complainant ,   and 

that  he  is  entitled  to  the  relief  prayed  for  in  his  said  bill  so  far  as 
the  same  is  consistent  with  this  report. 

Said  master  therefore  recommends  that  the  usual  and  regular 
decree  of  foreclosure  and  sale  be  entered  herein  in  accordance 
with  this  report. 

Dated  this day  of 19 


Master  in  Chancery  of  the Court  of County,  Illinois. 

Plan  of  Master's  Report  of  Building  and  Loan  Association  Fore- 
closure. 

Note    carefully    if    evidence    supports    following    findings: 

Finding    that Association   is    a   corporation    organized 

and  doing  business  under  the  law  of  Illinois,   that  C.   D.  being  a 

member  of  said  association  and  the  holder  and  owner  of 

shares  of  the  capital  stock  of  said  association,  made,  executed  and 

delivered   his    certain bond    (or    agreement)    in    "words 

and  figures  as  follows":  (quote  bond  in  full)  and  also  executed  and 
delivered  the  certain  trust  deed  mentioned  in  said  bond  at  the  time 
and  in  the  manner  as  set  forth  in  complainant's  bill. 

Finding    as    to    acknowledgment    and    recording   of    trust   deed. 

That  the  trust  deed,  mentioned  in  said  bond,  among  other  things 
contains  the  following  words  and  figures:  (quote  covenants,  penal- 
ties  and   rights    in    question,   also    defeasance    clause,    release    and 


140 

waiver  of  homestead  clause,  solicitors  fee  clause,  other  expenses 
clause,  etc. 

That ,  at  the  time  of  filing  the  bill  herein  and  up  to 

this  day  was  and  is  the  legal  holder  and  owner  of  said  bond. 

That  said  C.  D.  made  the  payments  mentioned  in  said  bond  until 

the day   of 19     ;    that   the   amount   of   dues 

paid    on    his    shares   of   stock    is    $   ;    that  said    C.    D.    made 

default  in  the  payment  of  the  certain  installment  of  dues,  interest 

and  premium  aforesaid,  which  became  due  on  the day 

of and   in   said   default  continues  to  this   day. 

That   on   the day    of said    association    through 

its  board  or  directors  duly  passed  a  resolution  in  words  and  figures 
as  follows: 

("Quote  resolution  declaring  default  and  amount  due,  or  for- 
feiture, and  authorizing  suit.) 

That  between  (give  date)  the  last  day  C.  D.  paid  money  as 
aforesaid  and  ....  (give  date  of  resolution)  ....  (give  number  of 
installments  of  premium  and  interest  became  due  to  said  association 
from  C.  D. 

Find  facts  as  to  defaults  in  the  payment  of  taxes,  and  amounts, 
with  dates,  paid  therefor  by  complainant  association. 

Find  facts  as  to  defaults  in  the  payment  of  insurance  and  the 
amounts,  with  dates,  paid  therefor  by  complainant  association. 

If  T.  D.  provides  for  specific  recovery  of  money  laid  out  for 
abstract  of  title,  find  that  a  continuation  of  abstract  of  title  was 
necessary  for  purposes  of  this  suit  and  the  amount,  with  date, 
expended  for  abstract  continuation. 

That  the  following  are  the  by-laws  of  said  association  which 
determine  and  govern  the  withdrawal  value  of  the  shares  of  stock 
aforesaid:      (quote  by-laws.) 

That  the  withdrawal  value  of  the  stock  aforesaid   is   $ 

being    $   amount    paid    as    dues    and per    cent,    interest 

thereon  according  to  said  by-laws. 

That  the  following  words  and  figures  of  the  by-laws  of  said 
association  determine  and  govern  the  assessment  and  collection  of 
fines  upon  the  capital  stock  of  members  of  said  association:  (quote 
by-laws  on  fines,  if  fines  involved  in  cause.) 

That   fines   amounting    to     $   were     duly     and     regularly 

assessed    against   said according   to   said   by-laws. 

That   on   the    day    of    being   the   day 

when    by    the    resolution   aforesaid   the    stock    aforesaid    owned    by 

said was  forfeited  and  reverted  to  said  association,  the 

membership  of  said  C.  D.  ceased,  and  a  legal  relation  of  borrower 
and  mortgage  creditor  superceded  the  contract  relation  set  forth  in 
the  bond  and  trust  deed  aforesaid,  and  on  said  last  mentioned  day 
therefore  the  installments  of  interest  and  premiums  falling  due 
(quarterly  or  semi-annually,  as  provided  in  T.  D.)  mentioned  in 
said  bond  and  trust  deed,  ceased  to  fall  due  as  before  (because  of 
said  loss  of  membership)  and  only  the  statutory  rate  of  interest,  5 
per  cent.,  can  thenceforward  be  charged  to  C.  D.  on  the  balance  re- 


141 

maining  due  said  association  after  applying  all  credits,  including  the 
withdrawal  value  of  said  stock  on  the  day  last  mentioned. 

That  no  share  of  the  capital  stock  aforesaid  has  matured  or 
reached  the  par  value  of  One  Hundred  Dollars. 

That  there  is  due,  owing  and  payable  to  said  association  from 
said  C.  D.  on  account  of  the  bond  and  trust  deed  aforesaid  and  on 

account  of  the  foregoing  the  sum  of  $   as  appears  from  the 

following  Items  of  debits  and  credits. 

Debits. 


(date  of  resolution)     Principal   loan 

"  "  "5  Int.  Installments  in 

arrears 
"  "  "      5  Premium  Installments 

in  arrears 
"  "  "      Fines  assessed  as  afore- 

said 
Taxes 
Insurance 

Credits. 

Dues    paid $ 

Int.  according  to 
by-laws    $ 


Balance  due 


(Date  of  resolution)         Balance  due  $  

Interest  thereon  at  5  per  cent,  to   (date  of  report.) 

Also  the  further  sum  of  $200  as  and  for  complainant's  solicitors, 
etc.,  etc.     (See  plan  of  ordinary  foreclosure  report.) 

Note:  Building  and  Loan  Association  foreclosure  bills  are  seldom 
correctly  drawn.  The  plan  of  the  master's  report  above  stated  will 
serve  to  point  out  what  allegations  the  bill  should  contain. 

FORM   OF   NOTICE   OF   DRAFT   OF   REPORT. 

(Title  of  Court  and  cause.) 

To    ,   solicitor   for   complainant,   and    , 

solicitor  for  defendant: 

Please  take  notice  that  I  have  prepared  a  draft  of  my  report  in 
the  above-entitled  cause,  and  objections  thereto  may  be  filed  at  my 

office    on    or   before    ,    the day    of    ,    A.    D.    19.., 

which  will  be  the  last  day  for  filing  objections  to  the  same;    and 

that    I    shall    hear    argument    on    any    objections    filed    on , 

A.   D.   19..,  at    o'clock    ..    m.,   at  which   time 

and  place  you  may  appear  if  you  see  fit. 

Dated   ,   ,  19 . . . 


Master  in  Chancery  of  the Court  of   County. 


142 

For  objections  and  exceptions  to  Master's  report,  see  page  65. 

FORM   OF  EXCEPTIONS  TO  MASTER'S  REPORT. 

(Title  of  Court  and  cause.) 

Exceptions  taken  by  C.   D.,  the  above  named  defendant,   to  the 

report  of    ,   master   in   chancery,   to   whom   this  cause 

stands  referred  by  an  order  heretofore  made  herein;  which  report 
is  dated  the day  of A.  D.    19     : 

(1)  For  that  the  master  has  found  that,  (Here  insert  the  find- 
ing and  ground  of  exception,)  whereas  he  should  have  found  that 
(here  state  finding  which  should  have  been  made).  See  evidence, 
pages  16,  27,  89. 

(2)  For  that,   etc 

Wherefore   said    excepts   to  said   report,   and   prays 

the  court,  upon  consideration  thereof,  to  enter  an  order  stating 
what  exceptions  are  allowed  and  what  exceptions  are  overruled, 
and  either  in  said  order  making  findings  or  conclusions  other  than 
or  additional  to  those  contained  in  the  report  or  by  said  order  re- 
referring  the  report  back  to  said  master  and  directing  him  to  file  a 
new  report  and  to  make  the  certain  other  or  additional  findings 
or  conclusions  specified  in  such  order,  together  with  such  further 
findings  and  conclusions  as  may  be  consistent  with  those  specified 
in  the  order,  and  consistent  with  the  rulings  of  the  court  upon 
exceptions  ruled  on  by  the  court,  and  containing  such  other 
directions  as  may  be  equitable. 

C.  D.,       Defendant. 

G.  F.  solicitor  for  defendant  C.  D. 

FORM    OF    ORDER    CONFIRMING    MASTER'S    REPORT. 

(Title  of  Court  and  cause.) 

This  cause  coming  on  this  day  to  be  heard  on  the  report  of . . . . 

,    one    of    the    masters    in    chancery   of    this    Court,    to 

whom  the  above-entitled  cause  was  duly  referred,  which  said  report 

was  filed  in  this  Court  on  the day  of ,  A.  D.  19. . .,  and 

upon  the  exceptions  of  the  defendant,  C.  D.,  to  said  report,  and 
the  complainant  being  present  in  open  court  by  G.  H.,  his  solicitor, 
and  the  defendant  being  present  in  open  court  by  J.  E.,  his  solicitor, 
and  the  Court  having  heard  the  arguments  of  the  solicitors  for 
the  respective  parties  in  support  of  and  against  the  allowance  of 
said  exceptions  and  the  confirmation  of  the  said  report,  and  having 
considered  the  same,  and  being  fully  advised  in  the  premises. 

It  is  ordered  that  the  said  exceptions,  and  each  of  them,  be  and 
the  same  are  hereby  overruled,  and  that  the  said  report  of  the  said 
master  be  and  the  same  is  in  all  things  approved  and  confirmed. 


143 

form  of  decree  in  foreclosure  case.     (containing  order  confirming 
master's  report). 

State  of   ,       ^  Court, 

Vss.  In  Chancery. 

County  of j  Gen.  No 

A.  B. 

vs. 
C.  D. 

This  day  come  the  complainant  by 

Solicitor,  and  the  defendant 

And  this  cause  coming  on  now  to  be  heard  upon  the  bill  of  com- 
plaint   of 

heretofore  taken  as  confessed  by  and  against  the  defendant  (name 
of  defendant's  defaulted) 

the   answer   of   the    defendant 

the  answer  of  the defendant 

by   Guardian   ad  litem, 

and  the   complainant's   replication   to   said   answer,   and   upon   the 

report  filed  herein  on  the day  of 

190  ,   and   dated 190  ,   of 

the   Master   in   Chancery   to   whom   this   cause 

was,  by  order  of  this  Court,  heretofore  referred  to  take  proofs 
herein  and  report  the  same  to  this  Court,  with  his  conclusions  of 
fact  and  of  law  upon  the  evidence;    and  upon  proofs  and  exhibits 

herein  made  in  open  Court 

On  motion  of  complainant's  solicitor  ,  it  is  ordered  that  said 
Master's  report  be,  and  the  same  is  hereby  in  all  things  approved 
and  confirmed,  including  his  fees  and  charges,  which  are  hereby  al- 
lowed as  certified  by  the  master,  and  taxed  as  costs  herein. 

And   the   Court,  being  fully  advised   in   the   premises,   finds   that 

the  material  allegations  in  said  bill  of  complaint 

have  been  proved  as  in  said  bill  set  forth,  and  are  true,  except  as 
otherwise  found  by  this  decree,  that  the  equities  of  this  cause  are 
with  the  complainant,  and  that  there  was  and  is  due  to  said  com- 
plainant  (name) 

the  sum  of  ( $ )    Dollars, 

being   the   amount    found   due   by   said    Master's    report,    as    more 
fully  appears  from  the  following  items:      (State  items). 
together   with  interest   at  five   per   cent   per   annum   on   said   total 
sum  from  the  date  of  said  Master's  report.     Also  the  further  sum 

of    Dollars, 

as  and  for  complainant's  solicitor's  fees  herein 

And  the  Court  further  finds   (state  1.  findings  of  fact;   2.  findings 
of  law.) 

It  is  Therefore  Ordered,  Adjudged  and  Decreed  that  unless  the 
defendant   

or  some  of  the  defendants,  within  two  days  from  the  date  of  the  entry 


144 

of  this  decree,  pay  or  cause  to  be  paid  to  said  complainant     said 

sum   of dollars    and 

cents,  with  interest  on  $ 

(being  said   total   less   the   said   sum   for   solicitor's 

fees)  at  the  rate  of  five  per  centum  per  annum  from  the  date  of 
said  Master's  report  to  the  day  of  such  pasmient,  and  pay  to  the 
oflBcers  of  this  court  the  taxed  costs  in  this  cause;  that  the  premises 
hereinafter  and  in  said  bill  of  complaint  described,  or  so  much 
thereof  as  may  be  necessary  to  pay  the  amount  so  found  to  be  due 
the  complainant  with  interest  thereon,  and  the  costs  aforesaid, 
and  which  may  be  sold  separately  without  material  injury  to  the 
parties  in  interest,  be  sold  at  public  vendue  to  the  highest  and  best 

bidder  for  cash  by    a  Master   in   Chancery  of  this 

Court,  at  the  Judicial  Salesrooms  of  the  Chicago  Real  Estate  Board, 
No.  57  Dearborn  Street,  in  the  City  of  Chicago,  in  the  County  and 
State  aforesaid;  that  said  Master  give  public  notice  of  the  time  and 
place  and  terms  of  such  sale,  by  publishing  same  at  least  once  in 
each  week  for  three  successive  weeks  in  some  secular  newspaper 
of  general  circulation,  published  in  the  City  of  Chicago,  County  of 
Cook  and  State  of  Illinois,  and  that  the  complainant  ,  or  any  of  the 
parties  to  this  cause,  may  become  the  purchaser  at  such  sale;  that 
upon  such  sale  being  made,  said  Master  execute  and  deliver  to  the 
purchaser  or  purchasers  a  certificate  or  certificates  of  sale,  evi- 
dencing such  purchase,  describing  the  premises  purchased,  the 
amount    paid    therefor,    or    if    purchased    by    the    complainant,    the 

amount   of bid,   and   the   time    when   such   purchaser 

or  purchasers  will  be  entitled  to  a  deed  for  said  premises,  if  the 
same  shall  not  be  redeemed  according  to  law,  and  that  within  ten 
days  from  such  sale  he  file  a  duplicate  of  such  certificate  or  certifi- 
cates in  the  office  of  the  Recorder  of  said  Cook  County. 

That  said  Master,  out  of  the  proceeds  of  said  sale,  retain  his  fees, 
disbursements  and  commissions  according  to  law,  and  pay  to  the 

officers  of  this  Court  their  costs  in  this  cause,  including  $ 

hereby  taxed  as  costs  for  said  Master's  reasonable  fees  and  charges 
under  the  order  of  reference  herein,  and  out  of  the  remainder  pay  to 

the  complainant  the  amount  by  this  decree  found  to  be  due 

with  interest  thereon  at  the  rate  of  five  (5)  per  cent  per  annum 
from  the  date  of  said  Master's  report  to  the  date  of  such  sale;  and 
if  such  remainder  shall  not  be  sufficient  to  pay  said  amount  and  in- 
terest, that  he  apply  the  same  to  the  extent  to  which  it  may  reach 
in  satisfaction  thereof,  and  specify  the  amount  of  the  deficiency  in 
his  report  of  such  sale;  and  if  said  remainder  shall  be  more  than 
sufficient  to  pay  said  amount  and  interest,  that  he  hold  the  suplus 
subject  to  the  further  order  of  this  Court;  and  that  he  take  receipt 
from  the  respective  parties  to  whom  he  may  have  made  payments 
as  aforesaid,  and  file  the  same  with  his  report  of  sale  in  this 
Court. 

It  is  further  ordered,  adjudged  and  decreed,  that  upon  the  expira- 
tion of  the  statutory  periods  of  redemption  after  the  date  of  such 
sale   if  the  premises  so  sold  shall  not  be  redeemed  according  to  law, 


145 

the  defendants  and  all  persons  claiming  under  them,  or  any  of  them, 
since  the  commencement  of  this  suit,  be  forever  barred  and  fore- 
closed of  and  from  all  right  and  equity  of  redemption  or  claim  of,  in 
and  to  said  premises  or  any  part  thereof;  and  in  case  said  premises 
shall  not  be  redeemed  as  aforesaid,  then  upon  the  production  to  the 
Master,  or  his  successor,  of  the  said  certificate  or  certificates  of  sale 
by  the  legal  holder  thereof,  said  Master  shall  make,  execute  and  de- 
liver to  the  legal  holder  of  such  certificate  or  certificates  a  good  and 
sufficient  deed  of  conveyance  of  said  premises;  and  that  thereupon 
the  grantee  or  grantees  in  such  deed,  or  his  or  their  legal  represen- 
tatives or  assigns,  be  let  into  possession  of  said  premises;  and  that 
any  of  the  parties  to  this  cause  who  shall  be  in  possession  of  said 
premises  or  any  portion  thereof,  or  any  person  who  may  have  come 
into  such  possession  under  them,  or  any  of  them,  since  the  com- 
mencement of  this  suit,  upon  the  production  of  said  Master's  deed 
of  conveyance,  and  a  certified  copy  of  the  order  of  Court  confirming 
said  sale,  surrender  possession  of  said  premises  to  said  grantee  or 
grantees,  his  or  their  representatives  or  assigns. 

The  premises  by  this  decree  authorized  to  be  sold  are  situated  in 

the    of    County 

of  Cook,  and  State  of  Illinois,  and  described  as  follows,  to-wit: 


Examined  and  approved  by  me  this day  of. 

. . .   190  . 


Master  in  Chancery  of  said  Court. 

Enter     

Judge. 

Memobandum  of  Time  and  Place  of  Sale  axd  of  Cash  Required  of 
Complainant  if  he  Bids. 


Sale at  11  o'clock  a.  m.,  at . 

Street. 


State  of 
County  of      \  ^^■ 

In  the    Court. 

In  Chancery. 

J      Gen.  No. 

vs.  I 
i       T.  No. 


Decree,  Inteeest  and  Costs  of  Sale. 

Decree    Debt ? 

Interest  thereon  at  5%  from  date  of  master's  report  to  date 

of  sale   3 

Solicitor's  fee    ^ 

Taxed  costs   (including  Master's  report,  $   ) ? 

Master's  fees,  disbursements  and  commissions: 

Preparing  notice  of  sale 5 


14() 

Publishing   notice   of   sale 

Commissions    on    sale 

Certificate  and  duplicate  of  sale. 
Recording  duplicate  certificate.. 
Report  of  sale  and   distribution. 


Total, 
Cash  at  sale  for  Master  if  bid  in  by  Complainant: 

Report     $ 

Expenses  and  commissions $ 


Master's  Report  of   Sale   and   Distribution. 

State  of        | 
County  of       ( 

Court  of County. 

In  Chancery. 

A.  ]     Term  No. 
-vs.-       I    Gen.  No. 

B.  j     Foreclosure 

(Title    of    Court    and    Cause). 

To  The  Honorable  Judges  of  Said  Court,  in  Chancery  Sitting: 
Pursuant  to  a  decree  entered  in  the  above  entitled  cause  on  the 

day   of    ,   A.    D.     19     ,    I,    ,    a    master    in 

chancery  of  said  court,  respectfully  report  that  more  than 

days  having  elapsed  after  the  entry  of  said  decree,  and  said  defend- 
ant not  having  paid  the  whole  or  any  part  of  the  money  by  said 
decree  required  to  be  by  him  paid,  I  duly  advertised,  according 
to  law  and  to  said  decree,  the  premises  in  said  decree  and  herein- 
after described,  to  be  sold  at  public  auction  to  the  highest  and 
best   bidder   therefor,   for   cash,   at   the   hour   of    11   o'clock    in   the 

forenoon  of    ,   the    day  of    

A.    D ,   at   the   Judicial    Sales  Rooms   of   the   Chicago   Real 

Estate  Board,  on  the  ground  floor  of  the  building  known  as  No. 
57  Dearborn  Street,  in  the  City  of  Chicago,  in  said  County,  by 
causing  a  notice  containing  the  title  of  said  cause,  the  names  of 
the  parties  thereto,  the  name  of  the  Court  wherein  said  cause  was 
pending,  and  a  description  of  the  premises  to  be  sold,  and  a  state- 
ment of  the  aforesaid  time,  place  and  terms  of  said  sale,  to  be  pub- 
lished for  three  successive  weeks  immediately  prior  to  said  day  of 

sale,  to-wit :    three  times   in ,    a   public 

secular  newspaper,  of  general  circulation,  printed  and  published 
every  day,  in  the  City  of  Chicago,   in  said  County.     The  date  of 

the  first  paper  containing  said  notice  was  the   day  of 

A.  D ,  and  the  date  of  the  last  paper  containing  said  notice 

was  the    day  of   A.   D ;    a  certificate  of 

which  publication  is  hereto  attached.  Marked  Exhibit  A. 


147 

At  the  time  and  place  so  designated  by  said  advertisement  for 
said  sale,  I  attended  to  make  said  sale;  and  I  offered  said  premises 
for  sale  at  public  auction  to  the  highest  and  best  bidder  for  cash. 
I  first  offered  each  lot  of  said  premises  for  sale  separately,  and 
there  were  no  bids  upon  said  offer.  I  next  offered  any  number 
of  said  lots  less  than  the  whole  of  said  premises  for  sale  in  groups 
to  suit  bidders,  and  there  were  no  bids  upon  said  last-named  offer. 

I  then  offered  said  premises  for  sale  entire;  whereupon 

offered  and  bid  therefor  the  sum  of 

Dollars    ($ ),  and  that  being  the  highest  and  best  bid 

for  cash  therefor  offered,  I  struck  off  and  sold  to  said  bidder  for 
said  sum  of  money  the  said  premises  which  are  situated  in  the 
County  of  Cook,  and  State  of  Illinois,  and  described  as  follows,  to- 
wit:       (Describe   premises). 

The  amount  aforesaid  realized  from  the  sale  aforesaid.  I  have 
allowed,   distributed,   credited,   paid  and   retained   as   follows: 

(allowed      Complainant       (towards  cr  in  full  of      amount  due 

on  decree  ($                       )  and  interest  thereon  ($                )  $ 

(allowed)   complainant  in  full  of  taxed  costs  $ 

(allowed)   complainant  in  full  of  solicitor's  fees  $ 

Retained  by  Master  for  advertising  sale  $ 

publishing  notice  of  sale  $ 

commissions  on  sale  $ 

certificate  of  sale  and  duplicate  $ 

recording  duplicate  certificate  $ 

report  of  sale  $ 
The  receipts  for  said  payments  are  hereto  attached  as  a  part  of 
this  report  and  marked  "Exhibits  B,  C,  and  D." 

I  have  executed  and  delivered  to 
purchaser     at  said  sale,   the  certificate     of  sale   directed   by   said 
decree,  and  by  law,  to  be  executed,  and  have  filed  in  the  office  of 
the  Recorder  of  Deeds  of  said  County  the  duplicate  of  said  certifi- 
cate. 

In  conclusion,  I  report  that  the  proceeds  of  said  sale  were  suffi- 
cient to  pay  the  amount  found  to  be  due  to  said  complainant 

All  of  which  is  respectfully  submitted. 

Dated    this day    of 19     . 


Master  in  Chancery  of  the  Court  of  Cook  County,  Illinois. 

Form  of  Receipts. 

State  of  Illinois,        ) 
County  of  Cook  j 

In  the   Court. 

In  Chancery. 

Gen.  No. 
Exhibit  B. 

19.... 


148 

Received  of ,  Master  in  Chancery  of  said  Court, 

Dollars,  on  account  of 

amount  due  under  decree  herein,  together  with  interest  thereon. 


Exhibit  C. 

19 

Received  of ,  Master  in  Chancery  of  said  Court, 

Dollars,  for  solicitor's  fees,   due  under  decree 

herein. 


Exhibit  D. 

19 

Received  of ,  Master  in  Chancery  of  said  Court,. . . . 

Dollars,    on    account     of     complainant's 

taxed  costs  herein. 


State  of        ) 


Form  of  Order  Confirming  Sale. 

ss. 


County  of 

In  the Court  of County. 

In  Chancery. 
Term,  A.  D.  19. .. 

A.        I 
-vs.-      y    Gen.  No. 

Order  Confirming   Sale   and   Deficiency    Decree. 

And  now  again  come  said  complainants,  by  said    

their  solicitor,  and  this  cause  comes  on  to  be  further  heard  upon 

the  report  of  sale  by ,  Master  in  Chancery,  filed  herein 

on  the day  of A.  D.  19. .,  and  thereupon, 

on  motion  of  said  complainant's  solicitor,  it  is  ordered  and  decreed 
that  said  report  and  sale,  be,  and  hereby  is  fully  approved  and  con- 
firmed. 

And  it  appearing  to  the  Court  from  said  report  that  the  said 
Master  has,  as  required  by  said  decree,  retained  out  of  the  proceeds 
of  such  sale  his  fees,  disbursements  and  commissions  on  said  sale, 

amounting  to   Dollars  ( $ ) ,  and  paid  to 

complainants  their  costs  in  this  suit,  amounting  to 

Dollars   ($ ),  and  their  solicitor's  fees,  amounting  to 

Dollars    ( $ ) ,  and  filed   their   receipts 

therefor    with    his    report,    and    that    after    deducting 

Dollars   ( $ ) ,  the  amount  so  retained 

and  paid  out,  there  remained  to  be  applied  upon  the  amount  due  to 
said   complainant    ,   under   said  decree,   the   sum  of 


149 

Dollars    ($ );    and  the  said 

Master  producing  the  receipt  of  ,  the  said  complain- 
ant, for  said  last-named  sum,  it  is  ordered  that  the  same  be,  and  it 
is,  credited  on  said  decree  as  paid  to  said  complainant  on  said.... 

day  of ,  A.  D.  19... 

And  it  further  appearing  to  the  Court,  from  said  report,  that 
the  proceeds  of  said  sale  were  insufficient  to  pay  the  amount  and 
adjudged  to  be  due  to  said  complainant,  and  that  there  is  a  balance 
due  to  said  complainant  over  and  above  such  pro- 
ceeds of  sale,  of  the  sum  of   

Dollars    ($ );    now,  therefore,    it    is  ordered,   adjudged   and 

decreed   by   the   Court   that   the    said   Complainant 

have  and  recover  of  and  from  the  said  defendants, 

and  upon  whom  personal  service  was  had  in  this  cause,  and  who 
are  personally  liable  for  the  payment  of  said  debt,  the  said  last- 
mentioned  sum  of   Dollars 

($ ),  and  that  the  complainant have  exe- 
cution therefor,  as  upon  a  judgment  at  common  law. 

Form  of  Master's  Certificate  of  Sale. 

State  of 

County  of  

Court  of County. 

In  Chancery. 
A.  B.     ^ 

vs.         V      Gen.  No. 
C.  D.      3 

I, ,  Master  in  Chancery  of  the Court  of 

County ,  Do  Hereby  Certify,  that  pursuant  to  a  decree 

entered   on   the    day   of    A.    D.     190  ,    by 

the  said  Court  in  the  above  entitled  cause,  I  duly  advertised,  ac- 
cording to  law,  the  premises  hereinafter  described,  to  be  sold  at 
public    vendue,    to    the    highest   and    best   bidder    for   cash,    at    the 

hour  of  11  o'clock  in  the  forenoon,  on  the day 

of   A.  D.,  190  ,  at  the  Judicial   Sales  Rooms 

of  the  Chicago  Real  Estate  Board,  No.  57  Dearborn  Street,  in  the 
City  of  Chicago,  in  said  Cook  County.  That  at  the  time  and  place 
so  as  aforesaid  appointed  for  said  sale,  I  attended  to  make  the  same, 
and  offered  and  exposed  said  premises  for  sale  at  public  vendue,  to 

the  highest  and  best  bidder  for  cash:     Whereupon 

offered  and  bid  therefor  the  sum  of 

;  and  that  being  the  highest  and  best  bid  offered  there- 
for I  accordingly  struck  off  and  sold  to  said  bidder,  for  said  sum 

of  money,  the  said  premises,  which  are  situated  in  the 

County   of  Cook   and   State   of   Illinois,   and 

are  described  as  follows,  to-wit :    


150 

And  I  do  further  certify  that  the  said legal  represen- 
tatives or  assigns,  will  be  entitled  to  a  deed  of  said  premises  on  the 

day  of A.  D.  19  ,  unless  the  same  shall  be 

redeemed  according  to  law. 

Witness  my  hand  and  seal,  this day  of 

A.  D.    190  . 

[Seal.1 

Master  in  Chancery  of  the Court  of  Cook  County,  Illinois. 

Master's  Certificate  of  Redemption. 

Whereas,   The    following    described    premises,     situated    in    the 

County  of  Cook  and  State  of  Illinois,  were  on  the 

day  of  A.  D.    190  ,  exposed  for 

sale  at  public  vendue  by  the  undersigned,  one  of  the   Masters  in 

Chancery  of  the Court  of  Cook  County,  in  pursuance  of 

a  decree  made  and  entered  by  the Court  of  Cook  County, 

on   the day  of A.    D. 

190  ,   in   a   certain    cause   then    pending   therein    on    the    Chancery 

Bide  thereof,  in  which 

defendant 

And,  Whereas,  At  said  time 

being  the  highest  and  best  bidder. ..  .therefor,  became  the  pur- 
chaser . . . . ,  for  the  sum  of 

of  said  premises,  to-wit:    

and  received  from  the  undersigned  a  certificate  of  such  sale,  stating 
that  the  said  purchaser  would  be  entitled  to  a  deed  of  said  premises 

on  the day  of   A.  D.   19  , 

unless  sooner  redeemed. 

And,  Whereas,  Twelve  months  have  not  elapsed  since  said  sale, 

And,    Whereas,     

being  interested  in  said  premises  has  this  day  paid  to  the  under- 
signed, as  Master  in  Chancery,  the  sum  of 

being  the  amount    of    said    sale    with    interest    thereon,    and    the 

further  sum  of   for  taxes  and 

assessments  paid  by  the  holder  of  said  certificate  of  sale  on  said 
premises,  with  interest  thereon  as  and  for  the  redemption  of  said 
premises  from  said  sale. 

Now,    Therefore,     The     undersigned     hereby     certifies    that    said 

premises  have  been  this  day  redeemed  from  said  sale  by 

in  accordance  with  the  provisions  of  the  statute  in  such  case  made 
and  provided. 

Given  under  my  hand  and  seal  this    day 

of   A.  D.    190  . 

[Seal.] 


Master   in   Chancery  of  the Court   of  Cook   County. 


151 

Master's  Deed. 

This   Indenture,    Made   this    day   of    A. 

D.    190  ,  Between Master  in  Chancery  of  the 

Court  of  County,  in  the  State  of  Illinois,  party  of  the 

first  part,  and 

of County  of and  State  of 


party  of  the  second  part,  witnesseth: 

Whereas,  In  pursuance  of  a  decree  entered  on  the day 

of A.   D.   19... by  the Court   of   said 

County,  in  a  certain  case  then  pending  therein,  on  the  Chancery  side 
thereof,    wherein 


Complainant. . .  .and 


Defendant. ..  .the  said  Master  in  Chancery  duly  advertised,  accord- 
ing to  law,  the  premises  hereinafter  described,   for   sale  at  public 

auction  to  the  highest   bidder, 

at  the  hour  of o'clock,  in  the .... 

noon,  on  the   day  of   A.  D.    190  ,  at 

in   in  said   County. 

And,  Whereas,  at  the  time  and  place  so  as  aforesaid  appointed  for 
said  sale,  the  said  Master  in  Chancery  attended  to  make  the  same, 
and  offered  and  exposed  said  premises  for  sale  at  public  auction,  to 
the  highest bidder, and  thereupon 

offered  and  bid  therefor  the  sum  of  

Dollars  ($ ) ;  and  that  being 

the  highest    bid  offered,   said  Master   in   Chancery 

accordingly  struck  off  and  sold  to  said 

for  said  sum  of  money,  the  said  premises,  and  did  thereupon  sign, 
seal  and  deliver  to  said 


.the  usual  Master's  certificate  therefor: 


And,  Whereas,  said  premises  have  not  been  redeemed  from  said 
sale: 

Now,  Therefore,  in  consideration  of  the  premises  the  said 
party  of  the  first  part  doth  hereby  convey  unto  the  said  party  of 

the   second   part heirs  and   assigns,   the   said   premises, 

which  are  situated  in County  of   and  State 

of  Illinois,  and  described  as  follows,  to-wit: 

To  Have  and  to  Hold  the  same,  with  all  the  appurtenances  there- 
unto belonging,  unto  the  said  party  of  the  second  part, 

heirs  and  assigns,  forever. 


152 

Witness  the  hand  and  seal  of  the  said  party  of  the  first  part,  the 
day  and  year  first  above  written. 

[Seal.] 

Master  in  Chancery  of  the Court  of   County. 

State  of ,  -j 

County  of i  ^^■ 

I,  a  Notary  Public  in  and  for  the  said in  the   State 

aforesaid,  do  hereby  certify,  that  Master  in  Chancery 

of   the court   of  said County,   who   is   personally 

known  to  me  to  be  the  same  person  whose  name  is  subscribed  to 
the  foregoing  instrument,  appeared  before  me  this  day  in  person, 
and  acknowledged  that  he  signed,  sealed  and  delivered  the  said 
Instrument  as  his  free  and  voluntary  act,  as  such  Master  in  Chan- 
cery, for  the  uses  and  purposes  therein  set  forth. 

Given  under  my  hand  and  Notarial   Seal,  this day 

of   A.  D.    190  . 


Notary  Public. 

Master's  Report  in   Partition   Suit. 

State  of  Illinois,      j 
County  of  Cook,      j  ^^• 

In  the  Superior  Court. 

In  Chancery. 
A.  B.      ^ 

vs.        y      Gen.   No. 
C.  D.      j 

To  the  Honorable  .Judges  of  said  Court,  in  Chancery  sitting: 

Pursuant  to  an  order  of  reference  heretofore  entered  herein, 
said  Master  reports  as  follows: 

That,  upon  due  notice  to  all  the  parties  hereto,  and  "in  due  form 
of  law,  parties  were  present,  witnesses  were  duly  sworn  and  testi- 
fied, evidence  was  heard  and  received,  and  proceedings  were  had, 
as  more  fully  appears  from  the  transcript  of  proceedings  and  evi- 
dence annexed  as  a  part  of  this  report;  which  said  transcript,  to- 
gether with  the  exhibits  therein  mentioned,  contains  all  the  evi- 
dence submitted  before  the  Master  in  said  cause;  and  from  the 
competent  evidence  so  submitted,  and  from  the  confessions  under 
the  pleadings  in  said  cause,  said  Master  finds  the  following  matters 
of  fact  to  be  true: 

That— 

That —  etc.  etc. 

(If  the  partition  bill  prays  only  for  general  relief  master  should 
make  following  recommendations  as  a  guide  for  the  court's  next 
order). 

Said  Master  therefore  recommends  that  the  Court  appoint  three 
commissioners,  not  connected  with  any  of  the  parties  herein,  either 


153 

by  consanguinity  or  affinity,  and  entirely  disinterested,  to  make 
partition  of  said  premises  above  described;  tliat  such  commissioners 
each  talve  and  subscribe  an  oath  or  affirmation  fairly  and  impar- 
tially to  make  partition  of  said  premises,  according  to  the  rights  and 
interests  of  the  parties  herein,  as  found  above  by  said  Master  and 
as  may  be  declared  by  the  judgment  of  the  Court,  if  the  same  can 
be  done  consistently  with  the  interests  of  the  parties;  or,  if  the 
same  cannot  be  so  divided  without  manifest  prejudice  to  the  par- 
ties in  interest,  that  such  commissioners  will  fairly  and  impar- 
tially appraise  the  value  of  each  piece  of  the  premises  aforesaid,  and 
a  true  report  make  to  said  Court. 

Said  Master  further  recommends  that  such  commissioners  shall 
go  upon  said  premises,  and  if  the  same  are  susceptible  of  division 
they  shall  make  partition  thereof,  allotting  the  several  shares  to 
the  respective  parties  entitled  thereto  as  aforesaid,  quality  and 
quantity  relatively  considered,  according  to  their  respective  rights 
and  interests,  as  may  be  adjudged  by  said  Court,  designating  the 
respective  shares  by  metes  and  bounds,  or  other  proper  description, 
and  that  such  commissioners  may  be  permitted  to  employ  a  sur- 
veyor, with  necessary  assistants,  to  aid  therein;  and  if  the  prem- 
ises aforesaid  are  not  susceptible  of  division  without  manifest  prej- 
udice to  said  parties  in  interest,  they  shall  value  each  piece  sepa- 
rately. 

Said  Master  further  recommends  that  such  commissioners  make 
report  in  writing,  signed  by  at  least  two  of  them,  showing  what 
they  have  done,  and,  if  they  shall  have  made  a  division,  describing 
the  premises  divided  and  the  shares  of  each  party  by  metes  and 
bounds,  or  other  proper  description;  or,  if  they  find  that  said  prem- 
ises cannot  be  divided,  they  shall  so  report,  and  shall  report  their 
valuation  of  each  piece  separately. 

Said  Master  further  recommends  that  if  the  whole  or  any  of  the 
premises  aforesaid  sought  to  be  partitioned  cannot  be  divided  with- 
out manifest  prejudice  to  the  said  owners  thereof,  and  the  com- 
missioners appointed  to  divide  the  same. shall  so  report,,  the  Court 
shall  order  the  premises  so  not  being  susceptible  of  division  to  be 
sold  at  public  vendue,  upon  such  terras  and  notice  of  sale  as  the 
Court  shall  direct,  for  not  less  than  two-thirds  of  the  total  amount 
of  the  valuation  of  such  premises  so  not  susceptible  of  division. 

All  of  which  recommendations  are  in  accordance  with  the  pro- 
visions of  the  statute  in  such  case  made  and  provided. 

All  of  which  is  respectfully  submitted  this day  of , 


Master  in  Chancery  of  the Court  of  Cook  County,  Illinois. 


154 


Master's  Report  of  Partition  Sale. 


State  of  Illinois 
County   of  Cook 


:   |. 


In 

THE 

Superior 

Court. 

In  Chancery. 

A 

ET 

AL. 

) 

VS. 

C      Gen. 

No 

B 

ET 

AL. 

f 

Report  of  Partition  Sale  by  Master  in  Chancery. 

To  the  Honorable  Judges  of  said  court,  in  Chancery  sitting: 

Pursuant  to  a  decree   made   and   entered   by  said   Court  in  the 

above  entitled  cause  on  the  9th  day  of  July,  A.  D.  1900,  I, 

,  Master  in  Chancery  of  said  Superior  Court,  respectfully  re- 
port that,  in  accordance  with  said  decree,  I  duly  advertised  the 
premises  in  said  decree  and  hereinafter  described  to  be  sold  at  pub- 
lic auction  to  the  highest  and  best  bidder  for  cash,  and  upon  the 
terms  and  conditions  set  forth  in  said  decree,  at  the  Judicial  Sales- 
rooms of  the  Chicago  Real  Estate  Board,  No.  57  Dearborn  Street, 
in  the  City  of  Chicago,  County  of  Cook  and  State  of  Illinois,  at  the 

hour  of  eleven  o'clock  in  the  forenoon,  on ,  the.... day 

of A.  D.  19.  . .,  by  causing  a  notice  containing  the  title  of 

said  cause,  the  names  of  the  parties  thereto,  the  name  of  the  Court 
in  which  said  cause  was  pending,  a  description  of  the  premises 
to  be  sold,  and  a  statement  of  the  aforesaid  time,  place,  terms  and 
conditions  of  sale,  to  be  published  for  three  successive  weeks  prior 
to  said  sale  in  the  " ,"  a  secular  news- 
paper of  general  circulation  in  said  County,  published  in  said 
County  every  day  except  Sunday,  the  date  of  the  first  publication 

thereof  being  the day  of A.  D.  19. .  ;  the  date  of  the 

second  publication  thereof,  being  the day  of A.  D.  19. . ; 

and  the  date  of  the  third  publication  thereof  being  the day  of 

A.  D.  19. . ;  a  certificate  of  which  publication  is  hereto  at- 
tached as  a  part  of  this  report  and  is  marked  "Exhibit  A." 

At  the  time  and  place  designated  as  aforesaid  for  said  sale,  I 
attended  to  make  the  same,  and  offered  said  premises  for  sale  at 
public  auction  to  the  highest  and  best  bidders  for  cash  therefor,  and 
upon  the  terms  and  conditions  set  forth  in  said  decree.  And  I 
first  offered  each  of  said  lots  for  sale  separately  and  singly,  mak- 
ing note  of  each  amount  offered  for  each  single  lot;  and  the  sum 
total  of  the  several  bids  upon  said  last-named  offer  by  said  Master 
was  not  sufficient  to  realize  and  fulfill  the  amount  and  terms  set 
forth  in  said  decree.     I  then  offered  the  lots  of  said  premises  for 

sale  singly  and  in  groups  to  suit  bidders;    whereupon, 

offered  and  bid  the  sum  of ( $ ) 

for  Lot in  block of  said   premises ; 

offered  and  bid  the  sum  of Dollars 

($ )   for  Lot in  block of  said  premises;    etc. 

I  next  offered  said  premises  for  sale  in  any  groups  or  combina- 


155 

tions  of  lots  less  than  the  whole  of  said  premises,  and  there  were 
no  bids  upon  said  last-named  offer,  except  the  bids  as  set  forth  as 
aforesaid.  I  next  offered  said  premises  for  sale  entire,  and  there 
were  no  bids  upon  said  last-named  offer.  And  the  bids  above  speci- 
fied being  the  highest  and  best  bids  offered  for   said   premises,   I 

struck  off  and  sold  to  said ,  for  said  sum  of 

Hundred ($ ),   Lot in   Block in 


And  said  Master  further  reports  that  said  purchasers  have  paid 
said  Master  the  amounts  of  their  respective  bids,  conditional  how- 
ever, upon  the  confirmation  by  this  Honorable  Court  of  said  Master's 
report  of  sale  herein,  and  upon  receiving  from  said  Master  their 
respective  and  proper  deeds  of  conveyance  of  the  premises  respect- 
ively so  sold  to  them  as  aforesaid;  which  said  deeds  of  conveyance 
shall  be  in  accordance  with  the  terms  and  conditions  set  forth 
in  said  decree. 

All  of  which  is  respectfully  submitted,  this day  of , 

A.  D 


Master  in  Chancery  of  the Court  of  Cook  County,  Illinois. 

Oedeb  Confibming  Master's  Report  of  Partition  Sale  and  Direct- 
ing Distribution. 

State  of  Illinois.      \ 
County  of  Cook,     f  ^^• 

In  the Court. 

In  Chancery. 

A       -k 

/     Gen.  No. 
vs.     L 
g       r     Term  No. 

The  Report  of ,  Master  in  Chancery,  appointed  by 

a  former  decree  of  the  Court  herein  to  make  sale  and  to  carry  into 
effect  said  former  decree  and  make  report  of  his  proceedings,  hav- 
ing been  filed  in  this  Court  on  the day  of A.  D.  19. . ., 

and  no  objections  having  been  filed  thereto  up  to  this  date,  and  the 
Court,  having  examined  said  report,  doth  find  that  the  said  Master 
has  in  every  respect  proceeded  in  due  form  of  law  and  in  accord- 
ance with  the  terms  of  said  decree,  and  that  said  sale  was  fairly 
made;  and  the  Court,  being  fully  advised  in  the  premises,  doth 
order,  adjudge  and  decree  That  the  proceedings,  sale  and  report 
of  said  Master  be  and  the  same  are  hereby  approved  and  confirmed; 
and  it  is  further  ordered  that  the  said  Master  execute  and  deliver 

to  the  said purchaser  at  said  sale,  a  proper  deed  of 

conveyance  of  the  premises  so  sold;  and  that  out  of  the  proceeds 
of  said  sale  said  Master  retain  his  commissions  and  fees  as  follows: 


156 

Report  upon  the  issues $ 

Preparing  notice   of  sale 75 

Publishing  notice  of  sale 

Salesroom   fee,  imposed  by  decree 75 

Commissions  on  sale 

Report  of  sale 2. 

Report  of  distribution 2. 

Deed    2. 


Total 

and  said  Master  shall  distribute  the  residue  of  said  moneys  between 

said  parties  as  follows: 

To  complainant's  solicitor  the  sum  of $ 

To  the  three  Commissioners  heretofore  appointed  herein  each 

the  sum  of  $10.00 30. 

To  complainant, for  sums  advanced   for  taxed 

costs  

To on  account  of  her  dower  interest 

in  said  premises 

To ,  on  account  of  her  2/80  interest 

in  and  to  the  premises  sold 

To  said ,  on  account  of  her  39/80  inter- 
est in  and  to  the  premises  sold 

To  said ,  on  account  of  her  39/80  inter- 
est in  and  to  the  premises  sold 

Said  master  is  directed  to  take  and  file  with  his  report  the  re- 
ceipts for  said  payments. 

Dated  this day  of 19 — 


Judge. 

Master's  Report  of  Distribution  in  Partition  Suit. 

Court. 

State  of   j 
County  of  ^  ^^• 

In  Chancery. 

A. 
vs.     V  Gen.  No. 

B. 

Bill  for  Partition. 

Report  of  Distribution, Master  in   Chancery. 

To  The  Honorable  Judges  of  Said  Court,  in  Chancery  Sitting: 
Pursuant  to  a  further  order  entered  in  the  above  entitled  cause 

on   the day  of ,   19     ,   whereby   the   Master's   report 

of  sale   filed   in   this   court   on    the day  of ,   19     , 

was  approved  and  confirmed,  and  by  which  order  said  Master  was 
directed   to   execute   and   deliver   to ,   the   purchaser   at 


157 

said  sale,  a  proper  deed  of  conveyance  of  said  premises,  and  by 
which  order,  also,  said  Master  was  Ordered  to  make  distribution  of 
the  proceeds  of  said  sale  and  take  receipts  therefor,  said  Master 
reports  as  follows: 

That  the  amount  paid  by  said for  premises  was 

Dollars   ($         ),  which  said  sum  said  Master  has  dis- 
tributed as  follows: 
Retained  by  Master  as  commissions  and  fees: 

Report  upon  the  issues $ 

Preparing  notice  of  sale 

Publishing  notice  of  sale 

Salesroom   fee   imposed   by   decree 

Commissions  on  sale 

Report   of  sale 

Report    of    distribution 

Deed    


Paid   Commissioners'    fees 

Paid  complainant for  sums  advanced  for  taxed  costs 

Paid  and  delivered   to on  account  of  her  dower   in 

said   premises 3 

Paid  and  delivered  to on  account  of  her  2/80  inter- 
est in  the  premises  sold 3 

Paid  to on  account  of  her  39/80  interest  in  the  prem- 
ises sold 3 

Paid  to on  account  of  her  39/80  interest  in  the  prem- 
ises   sold 3 


Total     $ 

The  receipts  for  said  payments  are  hereto  attached  as  a  part  of 

this  report,  and  are  marked,   respectively,  Exhibit  A,   B,  C,   D,  E, 

F  and  G. 

Said  master   reports  that  he  has  executed  and   delivered  to. . . . 

purchaser  at  said  sale  a  proper  deed  of  conveyance  of  said 

premises. 

All  of  which  is  respectfully  submitted  this day  of 

,  19... 

Master  in  Chancery  of  the Court. 


CHANCERY  RULES 

OF  THE 

CIRCUIT  AND  SUPERIOR  COURTS 

OP 

COOK  COUNTY,  ILLINOIS. 

[Note:  The  rules  of  the  two  courts  are  the  same  except  as  indi- 
cated herein]. 

APPEARANCE  OF  PARTIES. 

1.  When  any  defendant  who  shall  be  summoned, 
served  with  a  copy  of  the  bill  or  petition,  or  notified 
of  the  commencement  of  the  suit,  as  required  by  law, 
shall  enter  and  file  an  appearance  in  writing,  before 
default  taken,  the  party  entering  such  appearance  shall 
thereby,  without  any  order,  have  twenty  days  from 
the  first  day  of  the  appearance  term  within  which  to 
except,  plead,  answer  or  demur.  By  "appearance 
term"  is  meant  the  term  at  which  the  party  might  be 
defaulted  for  failure  to  appear. 

When  any  defendant  who  has  not  been  summoned, 
etc.,  as  required  by  law,  shall  enter  an  appearance,  he 
shall  give  the  complainant's  solicitor  immediate  notice 
of  the  fact,  and  shall  except,  plead,  answer  or  demur 
within  twenty  days  after  entering  such  appearance. 

DEFAULTS. 

2.  On  and  after  the  third  day  of  each  term  defaults 
may  be  entered  as  to  such  defendants  as  have  been 
served  in  due  time,  and  have  filed  no  appearance  in 
writing. 

MOTIONS  OF  COURSE CIRCUIT  COURT. 

3.  Motions  of  Course  will  be  heard  at  the  opening 
of  court  on  the  morning  of  each  day  (and  the  time 
occupied  therein  shall  be  known  as  "motion  hour"), 
and  notice  thereof  (except  in  default  cases)  of  at  least 
one  day  shall  be  given  to  the  solicitor  of  record  of  the 


160 

opposite  party,  if  there  be  such  solicitor,  and  be  sup- 
ported by  affidavit  whenever  based  on  matters  of  fact 
not  appearing  of  record  or  by  files  in  the  case. 

MOTIONS  OF  COURSE SUPERIOR  COURT. 

4.  Motions  of  Course  will  be  heard  at  the  opening 
of  court  at  ten  o  'clock  each  day  ( and  the  time  occupied 
therein  shall  be  known  as  "motion  hour"),  and  notice 
thereof  (except  in  default  cases)  of  at  least  one  day 
shall  be  given  to  the  solicitor  of  record  of  the  opposite 
party,  if  there  be  such  solicitor,  and  be  supported  by 
affidavit  whenever  based  on  matters  of  fact  not  appear- 
ing of  record  or  by  files  in  the  case;  but  all  notices 
served  on  Saturday  shall  be  served  before  twelve 
o'clock  noon  of  that  day. 

WHAT  MAY  BE  CONSIDERED  AS  MOTIONS  OF  COURSE. 

Motions  for  default;  default  decrees,  for  appoint- 
ment of  commissioners  in  partition,  for  confirmation  of 
reports  of  commissioners  and  of  masters,  where  no  ex- 
ceptions are  filed;  motions  for  rules  to  plead,  answer 
or  demur  concerning  amendments  of  pleadings  or  for 
leave  to  file  any  pleading  or  paper;  to  set  aside  de- 
faults, for  new  bonds;  that  sureties  justify;  concern- 
ing ne  exeats ;  for  ex  parte  injunction  orders ;  touching 
the  custody  of  children;  motions  for  reference  to  a 
master  and  for  contempts  of  court,  may,  among  others, 
be  considered  motions  of  Course. 

HOW  MADE. 

A  note  of  such  motions  shall  be  made  by  the  solicitor 
of  the  moving  party  in  a  "motion  book, "  to  be  provided 
by  the  clerk,  or  by  a  memorandum  thereof  delivered  to 
the  minute  clerk  (whose  duty  it  shall  be  to  enter  the 
same  in  the  motion  book  in  the  order  of  the  receipt 
thereof)  before  the  opening  of  court.  The  note,  or 
memorandum,  shall  designate  the  term  number  and 
title  of  the  cause,  with  a  brief  statement  of  the  nature 
of  the  motion,  the  name  of  the  moving  solicitor,  and, 
except  in  default  cases  or  where  no  appearance  has 


161 

been  entered,  the  name  of  the  solicitor  of  the  opposite 
party. 

Such  motions  will  be  called  in  their  order  in  the 
motion  book,  and  solicitors  will  not  rise  to  address 
the  court  upon  a  motion  until  it  has  been  called. 

MOTIONS. 

If  no  one  appears  for  or  against  a  motion  when 
called,  it  will  be  stricken  from  the  contested  motion 
calendar  or  the  motion  book  upon  which  it  may  be 
pending. 

Motions,  whether  "contested"  or  "of  course,"  if 
not  supported  by  the  moving  solicitor  when  called, 
will  be  overruled,  as  of  course,  on  the  suggestion  of 
opposing  solicitor,  who,  in  response  to  notice  thereof,  is 
in  attendance ;  and  no  renewal  thereof  will  be  permitted 
except  for  cause  shown,  upon  service  of  notice  of 
motion  therefor,  with  copy  of  affidavit,  etc.,  upon  the 
opposing  solicitor,  and  upon  reasonable  teinns  in  the 
discretion  of  the  court,  or  upon  consent  thereto  in 
writing  of  the  opposing  solicitor. 

In  all  cases  where  a  motion  is  made  before  default 
day,  and  there  is  no  appearance  of  defendant  by 
solicitor,  the  defendant  shall  be  personally  served 
with  at  least  one  day's  notice  thereof,  and  with  copies, 
as  hereinbefore  directed,  if  practicable,  and  not  other- 
wise determined  by  the  court,  because  of  the  emergency 
thereof.  All  motions,  except  in  default  cases,  shall  be 
reduced  to  writing  and  filed  in  the  cause  before  action 
of  the  court  is  moved  thereon. 

CONTESTED    MOTIONS. 

Contested  motions  shall  be  deemed  to  include  all 
motions  pertaining  to  the  settling  of  pleadings,  for  ali- 
mony and  solicitors'  fees,  for  injunctions  upon  notice, 
to  dissolve  injunctions,  for  the  appointment  and  re- 
moval of  receivers,  the  hearing  of  exceptions  to 
masters'  and  receivers'  reports,  and  all  other  opposed 
motions  the  hearing  of  which  will  operate  to  unduly 
delay  the  court  in  its  other  duties. 

A  calendar  of  such  motions   will   be  made   up   on 


162 

Friday  of  eacli  week  for  hearing  on  the  following 
Monday,  in  the  order  of  filing  notices  thereof  with 
the  minute  clerk,  and  will  be  posted  in  the  court  room. 
The  court  may  in  its  discretion  continue  the  call  of 
said  calendar  from  day  to  day,  or  on  a  particular  day 
to  be  specified,  without  notice  except  as  may  be  an- 
nounced during  the  call  thereof,  and  may,  whenever 
in  its  opinion  the  exigency  of  the  case  requires  it,  hear 
particular  motions  at  any  time. 

Motions  passed  under  the  rule  relating  to  the  en- 
gagement or  other  disability  of  a  solicitor  shall  be 
placed  at  the  head  of  the  next  succeeding  calendar  in 
the  relative  order  they  occupied  on  the  pending  calen- 
dar. 

Motions  continued  by  order  or  consent  will  be  placed 
in  their  relative  order  at  the  foot  of  the  next  calendar, 
unless  otherwise  ordered. 

To  entitle  a  motion  to  be  placed  and  heard  on  the 
contested  motion  calendar,  notice  thereof,  together 
with  a  copy  of  all  affidavits  and  other  pertinent  and 
competent  papers  relied  upon  and  to  be  read  in  support 
thereof  (except  the  records,  files,  pleadings,  deposi- 
tions, reports  of  masters  and  receivers,  and  other  pro- 
ceedings in  the  cause,  or  in  other  causes),  must  be 
served  on  the  solicitor  of  the  opposing  party  before 
four  o'clock  in  the  afternoon  of  the  preceding  Thurs- 
day, and  a  copy  of  all  counter-affidavits,  etc.  (with  the 
like  exceptions),  must  be  served  on  the  solicitor  of  the 
moving  party  before  twelve  o'clock  noon  of  Saturday 
succeeding.  Said  notice,  with  proof  or  acceptance  of 
service  thereof,  must  be  delivered  to  the  minute  clerk 
before  two  o'clock  p.  m.  of  Friday. 

To  entitle  records  or  other  proceedings  in  the  same 
cause,  or  in  the  other  causes  than  the  one  in  which  the 
motion  is  made,  to  be  read  either  in  support  of  or  in 
opposition  to  a  motion  of  any  kind,  brief  designation 
thereof  must  be  made  by  notice  to  the  solicitor  of  the 
opposite  party  within  the  times  mentioned  for  the 
service  of  affidavits. 

Affidavits  and  matters  of  record,  strictly  in  rebuttal, 
may  be  read  without  notice,  or  the  service  of  a  copy 
thereof. 


163 

Motions,  in  cases  where  tlie  emergency  thereof  will 
not  admit  of  the  delay  incident  to  the  contested  motion 
calendar,  may  be  taken  up  and  heard  at  any  time,  upon 
such  notice  as  the  court  may  in  its  discretion  direct, 
or  without  notice  if  the  court  shall  so  determine. 

Except  by  permission  of  the  court,  but  one  solicitor 
on  each  side  shall  be  heard  on  any  motion,  demurrer, 
or  any  interlocutory  matter. 

TRIAL  CALENDAR. 

5.  When  any  chancery  cause  is  at  issue,  upon 
notice  and  motion  of  either  party,  the  cause,  at  any 
time  within  ten  days  of  the  commencement  of  the  term 
for  which  a  trial  calendar  may  be  ordered  made,  may 
be  ordered  placed  on  the  trial  calendar ;  and  any  cause 
before  issues  joined  may  be  ordered  placed  upon  the 
trial  calendar  by  consent  of  the  parties,  or  by  order 
of  the  court,  but  issues  must  be  joined  therein  before 
the  cause  is  reached  for  final  hearing. 

The  cases  on  such  calendar  shall  be  called  and  tried 
on  Tuesday,  Wednesday,  Thursday  and  Friday  of  each 
week,  and  also  on  Mondays  and  Saturdays  when  so 
directed  by  the  court.  No  more  than  five  cases  shall 
be  fixed  for  trial  upon  the  same  day;  but  if  the  court 
is  behind  in  the  call  of  the  calendar,  not  exceeding  six 
cases  may  be  called  for  trial  on  any  one  day.  All 
cases  remaining  undisposed  of  upon  any  calendar 
shall,  without  further  order,  be  placed  at  the  head  of 
the  next  (new)  calendar.     (See  rule  7.) 

SICKNESS,  ETC.,  OF  SOLICITOR. 

6.  When  the  principal  solicitor  of  a  party  is  sick, 
or  actually  engaged  in  the  trial  of  a  cause  in  some 
other  court  of  record  in  this  county  (or  in  the  Supreme 
Court)  at  the  time  the  cause  is  called  for  trial,  and  the 
adverse  party  is  ready,  the  court,  if  satisfied  by 
affidavit  or  otherwise  that  the  party  seeking  the  delaj^ 
would  have  been  ready  for  trial  but  for  the  sickness  or 
engagement  of  his  solicitor,  may  order  said  cause 
passed  or  continued  upon  such  terms  as  the  court  may 
direct;  provided,  however,  the  court  may  on  passing 


164 

such  cause  set  the  same  for  hearing  peremptorily  at 
some  future  day. 

PASSED  CASES. 

7.  No  case  will  be  passed  a  second  time  for  either 
of  the  causes  mentioned  in  the  preceding  rule;  any 
case  so  passed  shall  be  in  order  to  be  called  up  for  trial 
at  any  time  after  the  cause  for  which  the  same  was 
passed  shall  cease,  but  notice  shall  be  given  to  the 
opposite  party  or  his  solicitor;  which  notice  shall  be 
at  least  one  day's  notice,  unless  the  case  is  to  be  called 
up  for  trial  upon  the  same  day  that  it  is  passed. 

If  no  such  notice  shall  be  given  during  the  term  or 
terms  the  trial  calendar  shall  be  called,  the  case  shall 
be  placed  by  the  clerk,  without  further  order,  at  the 
foot  of  the  next  trial  calendar, 

DIVORCES  AND  DEFAULT  CASES. 

8.  All  divorces  and  other  default  cases,  in  which 
notice  shall  be  given  the  clerk  to  place  the  same  upon 
the  default  calendar,  will  be  heard  upon  Saturday  of 
each  week,  unless  otherwise  determined  by  the  judge 
before  whom  such  cause  is  pending.  No  references 
shall  be  allowed  in  default  divorce  cases  except  as  to 
questions  of  alimony  or  property,  and  all  testimony 
must  be  taken  by  deposition  or  in  open  court.  When 
taken  in  open  court,  it  must  be  taken  in  shorthand, 
written  out  and  presented  to  the  court  and  filed  be- 
fore a  decree  will  be  entered.  No  decree  of  divorce 
will  be  granted  upon  the  unsupported  testimony  of  the 
complainant. 

When  an  answer  is  filed,  the  case  may  be  placed  on 
the  trial  calendar  upon  notice  and  motion  thereof,  and 
heard  in  its  order. 

Within  ten  days  after  the  hearing  of  any  default 
or  uncontested  divorce  suit,  the  complainant  shall 
hand  to  the  minute  clerk  a  draft  of  the  decree  and 
certificate  of  evidence;  in  default  whereof,  unless  for 
good  cause  shown  that  the  time  be  extended,  the  bill 
shall  be  dismissed. 


165 


WITHDEAWAL   OF   SOLICITORS. 

9.  No  solicitor  will  be  permitted  to  withdraw  liis 
appearance  for  anj^  party  unless  the  court  shall  be 
satisfied,  by  affidavit  or  otherwise,  that  such  party  has 
had  reasonable  notice  of  the  solicitor's  intention  to 
withdraw  his  api^earance  in  the  cause. 

CIRCUIT  COURT ABSTRACT  OF  PLEADINGS  AND  EVIDENCE. 

10.  The  court  may  at  any  time  require  parties  to 
make  and  file  an  abstract  of  pleadings  and  of  the  evi- 
dence, when  the  same  shall  have  been  taken  by 
deposition  or  before  a  master. 

SUPERIOR  COURT ABSTRACT  OF  PLEADINGS  AND  EVIDENCE. 

10.  In  all  cases  heard  in  this  court,  except  where 
otherwise  determined  by  the  court,  the  parties  shall 
prepare  an  abstract  or  abridgement  of  their  respective 
pleadings,  and  of  the  evidence,  when  the  same  shall 
have  been  taken  by  deposition  or  before  a  master  in 
chancery,  and  such  abstract  of  the  pleadings  and  evi- 
dence shall  be  read  on  the  hearing  in  lieu  of  the  original 
pleadings  and  depositions. 

DECREES,    ETC.,   AS   TO    SALE   OF   REAL   ESTATE. 

101/^.  All  decrees  and  orders  of  this  court  directing 
the  public  sale  of  any  real  estate,  or  an  interest  therein, 
shall  provide  that  such  sale  shall  be  made  at  the  rooms 
of  the  Chicago  Real  Estate  Board  in  the  City  of 
Chicago,  unless  the  court,  for  cause  shown,  shall  other- 
wise order. 

CHANGING  FINAL  DECREE  AS  TO    ALIMONY    OR    CUSTODY    OF 

CHILDREN. 

11.  All  applications  for  changing  a  final  order  or 
decree  concerning  alimony  or  the  custody  of  children 
shall  be  by  petition  in  writing,  verified  by  affidavit. 
Upon  the  filing  thereof,  a  rule  on  the  respondent  to 
plead,  answer  or  demur  in  ten  days  after  service  of 
the  copy  thereof  on  such  respondent  may  be  obtained. 
Issues  joined  therein  may  be  heard  at  such  time  as 
the  court  may  order.  The  court  may,  in  its  discretion, 
upon  motion,  refer  the  same  to  the  master,  as  in  other 
cases. 


166 


BONDS. 

12.  Upon  the  motion  of  any  party  in  interest,  the 
bond  of  any  receiver,  injunction  or  other  bond  may  be 
ordered  spread  of  record  in  the  cause  in  which  it  is 
filed. 

COMPLETE   RECORD,   ETC. 

13.  A  complete  record  may  be  made  of  all  plead- 
ings, files,  etc.,  in  any  cause  upon  the  motion  of  any 
joarty  in  interest,  upon  such  terms  as  to  the  costs  there- 
of as  the  court  may  order. 

Any  pleading  or  file  may  be  ordered  spread  of 
record  in  any  cause  before  final  decree,  upon  such 
terms  and  in  such  manner  as  the  court  may  order. 

RECEIVERS. 

14.  Notice  of  the  filing  of  reports  by  receivers,  and 
of  all  orders  asked  for  by  any  receiver,  and  of  all  or- 
ders to  be  made  on  such  receiver,  shall  be  given  to 
each  and  all  the  solicitors,  or  firm  of  solicitors,  of  rec- 
ord in  the  cause. 

PLEADINGS  AND  COPIES  THEREOF. 

15.  Upon  the  filing  of  every  bill  or  petition  (or 
within  twenty- four  hours  thereafter),  a  copy  of  the 
same  and  of  all  exhibits  accompanying  the  same  shall 
be  filed  with  the  clerk  of  the  court,  marked  "copy." 
And  upon  the  filing  of  any  other  i)leading,  a  copy 
thereof  and  of  the  exhibits  accompanying  the  same 
shall  also  be  filed  with  the  clerk. 

Any  such  copy  may  be  taken  by  the  solicitor  of  any 
party  to  the  cause  upon  his  receipting  therefor  to  the 
clerk,  as  hereinafter  provided;  but  in  no  case  shall 
the  original  of  any  such  bill,  petition,  pleading  or  ex- 
hibit or  file  to  be  taken  from  the  custody  of  the  clerk, 
except  upon  special  order  of  the  court,  entered  of  rec- 
ord in  the  cause. 

CHANCERY  REGISTER. 

That  the  clerk  procure  and  keep  a  suitable  book,  to 
be  known  as  "The  Clerk's  Chancery  Register,"  in 
which  shall  be  noted : 


167 

First.  The  number  and  title  of  all  chancery  causes, 
petitions,  or  proceedings  commenced  upon  the  Chan- 
cery side  of  this  court. 

Second.  The  names  of  the  respective  solicitors  and 
counsel  therein. 

Third.  The  date  of  filing  the  bill,  petition,  demur- 
rer, answer  or  other  pleadings  therein,  and  of  all  affida- 
vits, exhibits,  or  other  papers  therein,  describing  the 
same  as  briefly  as  may  be  necessary  for  identifica- 
tion. 

Fourth.  The  date  when  any  such  bill,  petition,  de- 
murrer, answer,  pleading,  etc.,  or  filed  copy  thereof, 
shall  be  taken  from  the  files,  to  whom  delivered,  and 
when  returned.  But  no  such  delivery  shall  be  made 
to  any  person  other  than  a  solicitor  or  counsel  in  the 
cause  or  his  or  their  clerk,  known  to  be  such ;  nor  shall 
the  entire  files,  or  any  injunction,  receiver's  or  other 
bonds,  writ  or  other  process  be  delivered  to  any  other 
person  than  a  bailiff  or  deputy  clerk  of  this  court. 

It  is  also  ordered  that  no  such  bill,  partition,  demur- 
rer, answer,  pleading,  etc.,  or  filed  copy  thereof,  shall  be 
permitted  to  be  taken  from  the  files  except  upon  leav- 
ing with  the  Clerk  a  receipt  therefor  upon  the  receipt 
book  provided  for  that  purpose,  nor  shall  the  same 
be  retained  for  a  longer  time  than  three  days  (the 
date  when  taken  shall  be  counted  as  one  day) ;  and  if 
the  same  is  not  returned  within  such  three  days,  it 
shall  be  the  duty  of  the  clerk  in  charge  of  such  reg- 
ister to  forthwith  make  a  report  to  the  court,  to  the 
end  that  a  rule  may  be  made  to  return  the  same  to  the 
files  instanter. 

For  any  violation  of  this  rule,  or  for  any  cause,  the 
court  may  direct  the  clerk  to  refuse  to  allow  any 
specified  solicitor  or  counsel  to  take  any  pleading,  etc., 
or  filed  copy  thereof,  from  any  of  the  files  of  the  court. 

COSTS. 

16.  ^Vlien  there  are  several  defendants,  if  a  single 
appearance  is  filed  for  all,  but  one  appearance  fee  of 
three  dollars  ($3.00)  is  required  to  be  paid;  but  if 
several   appearances   are  filed  for   different  parties. 


168 

either  by  different  solicitors  or  by  the  same  solicitor 
at  different  times,  an  appearance  fee  must  be  paid 
for  each  appearance. 

When  the  appearance  fee  has  been  paid,  no  costs 
are  required  upon  filing  a  cross-bill. 

PAUPER  CASES SUPERIOR  COURT. 

New  rule  adopted  June  27,  1905.  (See  Common  Law 
Eule  28.) 

PAUPER  CASES — CIRCUIT  COURT. 

Same  as  Common  Law  Eule  28. 

RULES  GOVERNING   MASTERS   IN   CHANCERY. 

1.  Wlienever  a  reference  shall  be  made  to  a  Master 
in  chancery  of  this  court,  to  take  testimony  and  re- 
port the  same,  or  to  take  testimony  and  report  the 
same  with  his  conclusions  thereon,  to  the  court,  the 
master  to  whom  such  reference  is  made  shall,  as  soon  as 
practicable,  fix  a  day  to  proceed  with  the  taking  of 
testimony  or  evidence  on  such  reference;  and  on  the 
day  so  fixed  he  shall  proceed  with  the  taking  of  such 
testimony  or  evidence,  and  may,  in  his  discretion,  fix 
a  day  within  which  the  complainant  shall  close  his 
proofs,  which  time  he  may,  in  his  discretion,  for  good 
cause  shown,  extend  for  such  reasonable  time  as  jus- 
tice may  require;  and,  as  soon  as  the  complainant  has 
closed  his  proofs,  shall  fix  a  time  within  wliich  the 
defendant  shall  close  liis  proofs,  and  the  complainant 
his  proofs  in  rebuttal ;  and  in  his  discretion,  for  good 
cause,  may  extend  the  time  for  such  reasonable  time 
as  justice  may  require.  In  case  the  parties  shall 
not  close  their  proofs  within  the  time  limited  by  the 
master,  he  shall  proceed  to  make  up  his  report  upon 
the  testimony  and  evidence  that  may  have  been  sub- 
mitted to  him,  without  waiting  for  further  evidence  or 
testimony  from  the  party  so  failing  to  close  his  proofs 
within  the  time  limited. 

2.  Whenever  such  reference  is  made  to  a  master  in 
chancery  of  this  court  to  take  testimony  and  report 
the  same,  or  to  take  testimony  and  report  the  same 


169 

with  his  conelnsion  thereon,  to  the  court,  the  master 
shall  have  full  power  and  discretion  to  pass  upon  all 
questions  of  competency  of  witnesses,  and  the  pro- 
priety and  relevancy  of  all  questions  or  interrogatories 
put  by  counsel ;  and  the  master  shall  note  his  ruling 
upon  each  objection  in  the  minutes  of  the  proceedings 
before  him.  Wlien  the  master  has  ruled  that  a 
party  or  witness  shall  answer  a  given  interrogatory, 
it  shall  be  the  duty  of  such  witness  or  party  to  answer 
in  the  same  manner  as  if  such  witness  or  party  had 
been  so  directed  by  the  court;  and  in  case  the  master 
shall  hold  that  any  question  is  irrelevant  or  incompe- 
tent, the  same  shall  not  be  answered.  If  either  party 
shall  except  to  the  ruling  of  the  master  upon  the  ad- 
missibility of  testimony  or  evidence,  they  shall,  after 
the  testimony  and  evidence  before  the  Master  is  closed, 
and  before  he  makes  his  report  thereon,  bring  such 
objections  and  exceptions  to  the  master's  ruling  upon 
the  testimony  before  the  court;  and  if  the  court  shall 
sustain  the  rulings  of  the  master,  the  master  shall  im- 
mediately proceed  to  make  his  report  upon  the  testi- 
mony and  evidence  submitted  to  him;  and  if  such  ob- 
jections and  exceptions  to  the  rulings  of  the  master 
shall  be  sustained,  the  master  shall  proceed  to  take 
such  further  testimony  as  the  court  may  direct,  and 
shall  disregard,  in  making  up  his  report,  such  testi- 
mony as  the  court  may  rule  to  be  incompetent  or  irrel- 
evant. 

3.  All  parties  accounting  before  a  master  shall  bring 
in  their  respective  accounts  in  the  form  of  debtor 
and  creditor,  and  any  of  the  other  parties  who  shall 
not  be  satisfied  with  the  accounts  so  brought  in 
shall  be  at  liberty  to  examine  the  accounting  party 
viva  voce  or  upon  oral  or  written  interrogatories,  in 
the  master's  office,  as  the  master  may  direct. 

4.  The  master  shall  be  at  liberty  to  examine  any 
creditor  or  other  person  coming  in  to  make  a  claim 
before  him,  either  upon  written  interrogatories  or 
viva  voce,  or  in  both  modes,  as  the  nature  of  the  case 
may  appear  to  him  to  require.  The  evidence  upon 
such  examination  shall  be  taken  down  by  the  master, 
or  by  some  other  person  by  his  order  and  in  his  pres- 


170 

ence,  if  either  party  requires  it,  in  order  that  the  same 
may  be  used  by  the  court,  if  necessary. 

5.  All  affidavits,  depositions,  and  documents  which 
have  been  previously  made,  read,  or  used  in  the  court 
upon  any  proceeding  in  any  cause  or  matter  may  be 
used  before  the  master. 

6.  Every  bill  or  petition  upon  which  an  ex  parte 
preliminary  injunction — order  for  the  appointment  of 
a  receiver — or  for  a  writ  of  ne  exeat  republica  is  de- 
sired, shall  be  filed  with  the  clerk  of  the  court  before 
the  same  is  presented  to  a  judge  for  an  order,  or  to  a 
master  for  a  recommendation,  as  to  such  injunction, 
receiver  or  writ  of  ne  exeat.  For  such  purpose  the 
clerk  may  deliver  such  bill  or  petition  to  the  solicitor 
or  person  filing  such  bill,  upon  his  receipting  therefor 
to  such  clerk,  but  the  same  must  be  returned  to  the 
custody  of  such  clerk  immediately  after  such  judge 
or  master  shall  have  passed  upon  such  application. 

No  master  shall  examine  any  such  bill  or  petition 
presented  to  him  until  the  same  shall  have  been  filed 
as  aforesaid,  and  the  master's  fee  paid  to  such  mas- 
ter. 

The  judge  or  master  shall  indorse  upon  or  at  the 
foot  of  every  such  bill  or  petition  so  presented  and 
examined  by  him  his  conclusion,  or  recommendation, 
as  to  whether  the  prayer  of  such  bill  or  petition  as 
to  such  injunction,  receiver,  or  ne  exeat  shall  be 
granted. 

No  master  shall  examine  or  make  any  recommenda- 
tion upon  any  such  bill  or  petition  which  shall  contain 
the  indorsement  of  any  judge  or  master  as  aforesaid, 
except  upon  a  special  order  of  the  court  to  that  ef- 
fect. 

7.  The  attendance  of  solicitors  (Superior  Court) 
shall  not  be  compulsory  before  masters  in  chancery 
in  any  matter  on  Saturday  after  1  o'clock  p.  m. 

8.  Attendance  before  the  master  in  chancery  dur- 
ing the  vacation  of  the  courts  shall  not  be  com- 
pulsory, except  upon  special  order  made  in  the  par- 
ticular case;  nor  shall  attendance  upon  any  Saturday 
be  compulsory  except  upon  like  special  order.  (Cir- 
cuit Court.) 


171 

RULES WHEN   TO  GO   INTO   EFFECT. 

The  foregoing  rules  shall  go  into  effect  and  be  in 
force  from  and  after  the  15th  day  of  October,  1897, 
and  on  and  from  that  date  shall  supersede  all  prior 
rules  adopted  by  this  court. 


RULES  OF  PRACTICE 

FOR  THE 

COURTS  OF  EQUITY. 

OP 

THE  UNITED  STATES 


RULE  I. 


Court  always  open. — The  Circuit  Courts,  as  courts 
of  equity,  shall  be  deemed  always  open  for  the  pur- 
pose of  filing  bills,  answers  and  other  pleadings;  for 
issuing  and  returning  mesne  and  final  process  and 
commissions;  and  for  making  and  directing  all  inter- 
locutory motions,  orders,  rules,  and  other  proceedings, 
preparatory  to  hearing  of  all  causes  upon  their  merits. 

RULE  II. 

Rule  day. — The  clerk's  office  shall  be  open,  and  the 
clerk  shall  be  in  attendance  therein,  on  the  first  Mon- 
day of  every  month,  for  the  purpose  of  receiving,  en- 
tering, entertaining  and  disposing  of  all  motions,  rules, 
orders  and  other  proceedings  which  are  grantable  of 
course  and  applied  for,  or  had,  by  the  parties  or  their 
solicitors,  in  all  causes  pending  in  equity,  in  pursuance 
of  the  rules  hereby  prescribed. 

RULE  III. 

Orders  at  chambers. — Any  judge  of  the  Circuit 
Court,  as  well  in  vacation  as  in  term,  may  at  chambers, 
or  on  the  rule  days,  at  the  clerk's  office,  make  and  di- 
rect all  such  interlocutory  orders,  rules  and  other  pro- 
ceedings, preparatory  to  the  hearing  of  all  causes  upon 
their  merits,  in  the  same  manner  and  with  the  same 
effect  as  the  Circuit  Court  could  make  and  direct  the 
same  in  term,  reasonable  notice  of  the  application 
therefor  being  first  given  to  the  adverse  party  or  his 


174 

solicitor  to  appear  and  show  cause  to  the  contrary  at 
the  next  rule  day  thereafter,  unless  some  other  time 
is  assigned  by  the  judge  for  the  hearing. 

EULE  IV. 

Order  hook — Entry  of  motions. — All  motions,  rules, 
orders  and  other  proceedings,  made  and  directed  at 
chambers,  or  on  rule  days  at  the  clerk's  office,  whether 
special  or  of  course,  shall  be  entered  by  the  clerk  in 
an  order  book,  to  be  kept  at  the  clerk's  office,  on  the 
day  when  they  are  made  and  directed ;  which  book  shall 
be  open  at  all  office  hours  to  the  free  inspection  of  the 
parties  in  any  suit  in  equity,  and  their  solicitors.  And, 
except  in  cases  where  personal  or  other  notice  is 
specially  required  or  directed,  such  entry  in  the  order 
book  shall  be  deemed  sufficient  notice  to  the  parties 
and  their  solicitors,  without  further  service  thereof,  of 
all  orders,  rules,  acts,  notices  and  other  proceedings 
entered  in  such  order  book,  touching  any  and  all  the 
matters  in  the  suits  to  and  in  which  they  are  parties 
and  solicitors.  And  notice  to  the  solicitors  shall  be 
deemed  notice  to  the  parties  for  whom  they  appear 
and  whom  they  represent  in  all  cases  where  personal 
notice  on  the  parties  is  not  otherwise  specially  re- 
quired. Wliere  the  solicitors  for  all  the  parties  in  a 
suit  reside  in  or  near  the  same  town  or  city,  the  judges 
of  the  Circuit  Court  may,  by  rule,  abridge  the  time  for 
notice  of  rules,  orders,  or  other  proceedings  not  re- 
quiring personal  service  on  the  parties,  in  their  dis- 
cretion. 

EULE  v. 

Motions  grantahle  hy  clerk. — All  motions  and  ap- 
plications in  the  clerk's  office  for  the  issuing  of  mesne 
process  and  final  process  to  enforce  and  execute  de- 
crees; for  filing  bills,  answers,  pleas,  demurrers  and 
other  pleadings;  for  making  amendments  to  bills  and 
answers;  for  taking  bills  pro  confesso;  for  filing  ex- 
ceptions; and  for  other  proceedings  in  the  clerk's  of- 
fice which  do  not,  by  the  rules  hereinafter  prescribed, 
require  any  allowance  or  order  of  the  court  or  of  any 
judge  thereof,  shall  be  deemed  motions  and  applica- 


175 

tions  graotable  of  course  by  the  clerk  of  the  court. 
But  the  same  may  be  suspended,  or  altered,  or  re- 
scinded by  any  judge  of  the  court,  upon  special  cause 
shown. 

EULE  VI. 

Motions  not  of  course. — All  motions  for  rules  or  or- 
ders or  other  proceedings  which  are  not  grantable  of 
course  or  without  notice  shall,  unless  a  different  time 
be  assigned  by  a  judge  of  the  court,  be  made  on  a  rule 
day,  and  entered  in  the  order  book,  and  shall  be  heard 
at  the  rule  day  next  after  that  on  which  the  motion 
is  made.  And  if  the  adverse  party,  or  his  solicitor, 
shall  not  then  appear,  or  shall  not  show  good  cause 
against  the  same,  the  motion  may  be  heard  by  any 
judge  of  the  court  ex  parte,  and  granted,  as  if  not 
objected  to,  or  refused,  in  his  discretion. 

RULE  VII. 

Mesne  process. — The  process  of  subpoena  shall  con- 
stitute the  proper  mesne  process  in  all  suits  in  equity, 
in  the  first  instance,  to  require  the  defendant  to  ap- 
pear and  answer  the  exigency  of  the  bill;  and,  unless 
otherwise  provided  in  these  rules,  or  specially  ordered 
by  the  Circuit  Court,  a  writ  of  attachment,  and,  if  the 
defendant  cannot  be  found,  a  writ  of  sequestration,  or 
a  writ  of  assistance  to  enforce  a  delivery  of  posses- 
sion, as  the  case  may  require,  shall  be  the  proper  proc- 
ess to  issue  for  the  purpose  of  compelling  obedience 
to  any  interlocutory  or  final  order  or  decree  of  the 
court. 

RULE  VIII. 

Final  process. — Final  process  to  execute  any  decree 
may,  if  the  decree  be  solely  for  the  payment  of  money, 
be  by  a  writ  of  execution  in  the  form  used  in  the  Cir- 
cuit Court  in  suits  at  conunon  law  in  actions  of  assump- 
sit. If  the  decree  be  for  the  performance  of  any 
specific  act,  as,  for  example,  for  the  execution  of  a 
conveyance  of  land  or  the  delivering  up  of  deeds  or 
other  documents,  the  decree  shall,  in  all  cases,  pre- 
scribe the  time  within  which  the  act  shall  be  done;  of 


176 

which  the  defendant  shall  be  bound,  without  further 
service,  to  take  notice ;  and  upon  affidavit  of  the  plaint- 
iff, filed  in  the  clerk's  office,  that  the  same  has  not  been 
complied  with  within  the  prescribed  time,  the  clerk 
shall  issue  a  writ  of  attachment  against  the  delinquent 
party,  from  which,  if  attached  thereon,  he  shall  not  be 
discharged,  unless  upon  a  full  compliance  with  the  de- 
cree and  the  payment  of  all  costs,  or  upon  a  special 
order  of  the  court,  or  of  a  judge  thereof,  upon  motion 
and  affidavit,  enlarging  the  time  for  the  performance 
thereof.  If  the  delinquent  party  cannot  be  found,  a 
writ  of  sequestration  shall  issue  against  his  estate 
upon  the  return  of  non  est  inventus,  to  compel  obedi- 
ence to  the  decree. 

EXILE  IX. 

Writ  of  assistance. — When  any  decree  or  order  is 
for  the  delivery  of  possession,  upon  proof  made  by 
affidavit  of  a  demand  and  refusal  to  obey  the  decree 
or  order,  the  party  prosecuting  the  same  shall  be  en- 
titled to  a  writ  of  assistance  from  the  clerk  of  the 
court. 

RULE   X. 

Persons  not  parties. — Every  person,  not  being  a 
party  in  any  cause,  who  has  obtained  an  order,  or  in 
whose  favor  an  order  shall  have  been  made,  shall  be 
enabled  to  enforce  obedience  to  such  order  by  the  same 
process  as  if  he  were  a  party  to  the  cause;  and  every 
person,  not  being  a  party  in  any  cause,  against  whom 
obedience  to  any  order  of  the  court  may  be  enforced, 
shall  be  liable  to  the  same  process  for  enforcing  obedi- 
ence to  such  orders  as  if  he  were  a  party  in  the  cause. 

RULE   XL 

Issuance  of  subpoena. — No  process  of  subpoena  shall 
issue  from  the  clerk's  office  in  any  suit  in  equity  until 
the  bill  is  filed  in  the  office. 

RULE  XII. 

Return  of  subpoena. — Whenever  a  bill  is  filed,  the 
clerk  shall  issue  the  process  of  subpoena  thereon,  as 


177 

of  course,  upon  the  application  of  the  plaintiff,  which 
shall  contain  the  Christian  names  as  well  as  the  sur- 
names of  the  parties;  which  subpoena  shall  be  return- 
able into  the  clerk's  office  the  next  rule  day,  or  the 
next  rule  day  but  one,  at  the  election  of  the  plaintiff, 
occurring  after  twenty  days  from  the  time  of  the  issu- 
ing thereof.  At  the  bottom  of  the  subpoena  shall  be 
placed  a  memorandum  that  the  defendant  is  to  enter 
his  appearance  in  the  suit  in  the  clerk's  office  on  or 
before  the  day  on  which  the  writ  is  returnable ;  other- 
wise the  bill  may  be  taken  pro  confesso.  Where  there 
is  more  than  one  defendant,  a  writ  of  subpoena  may,  at 
the  election  of  the  plaintiff,  be  sued  out  separately  for 
each  defendant,  except  in  the  case  of  husband  and  wife 
defendants,  or  a  joint  subpoena  against  all  the  defend- 
ants. 

KULE  xin. 

Manner  of  service  of  subpoena. — The  service  of  all 
subpoenas  shall  be  by  a  delivery  of  a  copy  thereof  by 
the  officer  serving  the  same  to  the  defendant  person- 
ally, or  by  leaving  a  copy  thereof  at  the  dwelling-house 
or  usual  place  of  abode  of  each  defendant,  with  some 
adult  person  who  is  a  member  or  resident  in  the 
family. 

KULE  XIV. 

Alias  subpoena. — Whenever  any  subpoena  shall  be  re- 
turned not  executed  as  to  any  defendant,  the  plaintiff 
shall  be  entitled  to  another  subpoena,  toties  quoties, 
against  each  defendant,  if  he  shall  require  it,  until  due 
service  is  made. 

EULE  XV. 

By  whom  served. — The  service  of  all  process,  mesne 
and  final,  shall  be  by  the  marshal  of  the  district,  or  his 
deputy,  or  by  some  other  person  specially  appointed 
by  the  court  for  that  purpose,  and  not  otherwise.  In 
the  latter  case,  the  person  serving  the  process  shall 
make  affidavit  thereof. 

RULE  XVI. 

Docketing  cause. — Upon  the  return  of  the  subpoena 


178 

as  served  and  executed  upon  any  defendant,  the  clerk 
shall  enter  the  suit  upon  liis  docket  as  pending  in  the 
court,  and  shall  state  the  time  of  the  entry. 

BULB  XVII. 

Appearance,  when  and  Jioiv  entered. — The  appear- 
ance day  of  the  defendant  shall  be  the  rule  day  to 
which  the  subpoena  is  made  returnable,  provided  he 
has  been  served  with  the  process  twenty  days  before 
that  day;  otherwise,  his  appearance  day  shall  be  the 
next  rule  day  succeeding  the  rule  day  when  the  process 
is  returnable. 

The  appearance  of  the  defendant,  either  personally 
or  by  his  solicitor,  shall  be  entered  in  the  order  book 
on  the  day  thereof  by  the  clerk. 

RULE  XVIII. 

Default  and  decree  pro  confesso. — It  shall  be  the 
duty  of  the  defendant,  unless  the  time  shall  be  other- 
wise enlarged,  for  cause  shown,  by  a  judge  of  the  court, 
upon  motion  for  that  purpose,  to  file  his  plea,  demurrer 
or  answer  to  the  bill  in  the  clerk's  office  on  the  rule 
day  next  succeeding  that  of  entering  his  appearance. 
In  default  thereof,  the  plaintiff  may,  at  his  election, 
enter  an  order,  as  of  course,  in  the  order  book  that 
the  bill  be  taken  pro  confesso;  and  thereupon  the  cause 
shall  be  proceeded  in  ex  parte,  and  the  matter  of  the 
bill  may  be  decreed  by  the  court  at  any  time  after  the 
expiration  of  thirty  days  from  and  after  the  entry  of 
said  order,  if  the  same  can  be  done  without  an  answer, 
and  is  proper  to  be  decreed;  or  the  plaintiff,  if  he  re- 
quires any  discovery  or  answer  to  enable  him  to  ob- 
tain a  proper  decree,  shall  be  entitled  to  process  of 
attaclmient  against  the  defendant  to  compel  an  an- 
swer, and  the  defendant  shall  not,  when  arrested  upon 
such  process,  be  discharged  therefrom,  unless  upon 
filing  his  answer,  or  otherwise  complying  with  such 
order  as  the  court  or  a  judge  thereof  may  direct,  as  to 
pleading  to  or  fully  answering  the  bill,  within  a  period 
to  be  fixed  by  the  court  or  judge,  and  undertaking  to 
speed  the  cause. 


179 


RULE  XIX. 


Decree  pro  confesso — Default  set  aside. — When  the 
bill  is  taken  pro  confesso  the  court  may  proceed  to  a 
decree  at  any  time  after  the  expiration  of  thirty  days 
from  and  after  the  entry  of  the  order  to  take  the  bill 
pro  confesso;  and  such  decree  rendered  shall  be  deemed 
absolute,  unless  the  court  shall,  at  the  same  term,  set 
aside  the  same,  or  enlarge  the  time  for  filing  the  an- 
swer, upon  cause  shown,  upon  motion  and  affidavit  of 
the  defendant.  And  no  such  motion  shall  be  granted 
unless  upon  the  payment  of  the  costs  of  the  plaintiff 
in  the  suit  up  to  that  time,  or  such  part  thereof  as  the 
court  shall  deem  reasonable,  and  unless  the  defend- 
ant shall  undertake  to  file  his  answer  within  such  time 
as  the  court  shall  direct,  and  submit  to  such  other 
terms  as  the  court  shall  direct,  for  the  purpose  of 
speeding  the  cause. 

RULE  XX. 

Bill,  form  of. — Every  bill,  in  the  introductory  part 
thereof,  shall  contain  the  names,  places  of  abode  and 
citizenship  of  all  the  parties,  plaintiffs  and  defendants, 
by  and  against  whom  the  bill  is  brought.  The  form, 
in  substance,  shall  be  as  follows:  ''To  the  judges  of 
the  Circuit  Court  of  the  United  States  for  the  district 

of  :  A.  B.,  of  ,  and  a  citizen  of  the  state 

of ,  brings  this  his  bill  against  C.  D.,  of ,  and 

a  citizen  of  the  state  of ,  and  E.  F.,  of ,  and 

a  citizen  of  the  state  of  .     And  thereupon  your 

orator  complains  and  says  that, ' '  etc. 

RULE  XXI. 

Clauses  omitted  from  hill. — The  plaintiff,  in  his  bill, 
shall  be  at  liberty  to  omit,  at  his  option,  the  part  which 
is  usually  called  the  common  confederacy  clause  of  the 
bill,  averring  a  confederacy  between  the  defendants  to 
injure  or  defraud  the  plaintiff;  also,  what  is  commonly 
called  the  charging  part  of  the  bill,  setting  forth  the 
matters  or  excuses  which  the  defendant  is  supposed  to 
intend  to  set  up  by  way  of  defense  to  the  bill ;  also, 
what  is  commonly  called  the  jurisdiction  clause  of  the 


180 

bill,  that  tlie  acts  complained  of  are  contrary  to  equity, 
and  that  the  defendant  is  without  any  remedy  at  law; 
and  the  bill  shall  not  be  demurrable  therefor.  And 
the  plaintiff  may,  in  the  narrative  or  starting  part  of 
his  bill,  state  and  avoid,  by  counter-averments,  at  his 
option,  any  matter  or  thing  which  he  supposes  will  be 
insisted  upon  by  the  defendant  by  way  of  defense  or 
excuse  to  the  case  made  by  the  plaintiff  for  relief. 
The  prayer  of  the  bill  shall  ask  the  special  relief  to 
which  the  plaintiff  supposes  himself  entitled,  and  also 
shall  contain  a  prayer  for  general  relief;  and  if  an 
injunction,  or  a  writ  of  ne  exeat  regno,  or  any  other 
special  order,  pending  the  suit,  is  required,  it  shall  be 
specially  asked  for. 

KULE  XXII. 

Parties  beyond  jurisdiction. — If  any  persons,  other 
than  those  named  as  defendants  in  the  bill,  shall  ap- 
pear to  be  necessary  or  proper  parties  thereto,  the  bill 
shall  aver  the  reason  why  they  are  not  made  parties, 
by  showing  them  to  be  without  the  jurisdiction  of  the 
court,  or  that  they  cannot  be  joined  without  ousting 
the  jurisdiction  of  the  court  as  to  the  other  parties. 
And  as  to  persons  who  are  without  the  jurisdiction 
and  may  properly  be  made  parties,  the  bill  may  pray 
that  process  may  issue  to  make  them  parties  to  the  bill 
if  they  should  come  within  the  jurisdiction. 

RULE  XXIII. 

Prayer  for  process. — The  prayer  for  process  of  sub- 
poena in  the  bill  shall  contain  the  names  of  the  de- 
fendants named  in  the  introductory  part  of  the  bill, 
and  if  any  of  them  are  known  to  be  infants  under  age, 
or  otherwise  under  guardianship,  shall  state  the  fact, 
so  that  the  court  may  take  order  thereon  as  justice 
may  require,  upon  the  return  of  the  process.  If  an 
injunction,  or  a  writ  of  ne  exeat  regno,  or  any  other 
special  order,  pending  the  suit,  is  asked  for  in  the 
prayer  for  relief,  that  shall  be  sufficient,  without  re- 
peating the  same  in  the  prayer  for  process. 


181 


EULE  XXIV. 


Counsel  must  sign  hill. — Every  bill  shall  contain  the 
signature  of  counsel  annexed  to  it,  which  shall  be  con- 
sidered as  an  affirmation  on  his  part  that,  upon  the 
instructions  given  to  him  and  the  case  laid  before  him, 
there  is  good  ground  for  the  suit  in  the  manner  in 
which  it  is  framed. 

RULE  XXV. 

Costs — Purposes  of  taxation. — In  order  to  prevent 
unnecessary  costs  and  expenses,  and  to  promote  brev- 
ity, succinctness  and  directness  in  the  allegations  of 
bills  and  answers,  the  regular  taxable  costs  for  every 
bill  and  answer  shall  in  no  case  exceed  the  sum  which 
is  allowed  in  the  state  court  of  chancery  in  the  district, 
if  any  there  be ;  but  if  there  be  none,  then  it  shall  not 
exceed  the  sum  of  three  dollars  for  every  bill  or 
answer. 

RULE  XXVI. 

Contents  of  hill — Exceptions. — Every  bill  shall  be 
expressed  in  as  brief  and  succinct  terms  as  it  reason- 
ably can  be,  and  shall  contain  no  unnecessary  recitals 
of  deeds,  documents,  contracts  or  other  instruments, 
in  hcBC  verha,  or  any  other  impertinent  matter,  or  any 
scandalous  matter  not  relevant  to  the  suit.  If  it  does, 
it  may,  on  exceptions,  be  referred  to  a  master  by  any 
judge  of  the  court,  for  impertinence  or  scandal ;  and  if 
so  found  by  him,  the  matter  shall  be  expunged  at  the 
expense  of  the  plaintiff,  and  he  shall  pay  to  the  de- 
fendant all  his  costs  in  the  suit  up  to  that  time,  unless 
the  court  or  a  judge  thereof  shall  otherwise  order.  If 
the  master  shall  report  that  the  bill  is  not  scandalous 
or  impertinent,  the  plaintiff  shall  be  entitled  to  all 
costs  occasioned  by  the  reference. 

RULE  XXVII. 

Exceptions  for  scandal  or  impertinence. — No  order 
shall  be  made  by  any  judge  for  referring  any  bill,  an- 
swer or  pleading,  or  other  matter  or  proceeding,  de- 
pending before  the  court,  for  scandal  or  impertinence, 
unless  exceptions  are  taken  in  writing  and  signed  by 


182 

counsel,  describing  the  particular  passages  which  are 
considered  to  be  scandalous  or  impertinent ;  nor  unless 
the  exceptions  shall  be  filed  on  or  before  the  next  rule 
day  after  the  process  on  the  bill  shall  be  returnable, 
or  after  the  answer  or  pleading  is  filed.  And  such  or- 
der, when  obtained,  shall  be  considered  as  abandoned, 
unless  the  party  obtaining  the  order  shall,  without  any 
unnecessary  delay,  procure  the  master  to  examine  and 
report  on  the  same  on  or  before  the  next  succeeding 
rule  day,  or  the  master  shall  certify  that  further  time 
is  necessary  for  him  to  complete  the  examination. 

RULE  XXVIII. 

Bills  amended — Costs  paid  and  copy  furnished. — 
The  plaintiff  shall  be  at  liberty,  as  a  matter  of  course, 
and  without  payment  of  costs,  to  amend  his  bill,  in  any 
matters  whatsoever,  before  any  copy  has  been  taken 
out  of  the  clerk's  office,  and  in  any  small  matters  after- 
wards, such  as  filling  blanks,  correcting  errors  of  dates, 
misnomer  of  parties,  misdescription  of  premises, 
clerical  errors,  and,  generally,  in  matters  of  form.  But 
if  he  amend  in  a  material  point,  as  he  may  do  of 
course,  after  a  copy  has  been  so  taken,  before  any  an- 
swer or  plea  or  demurrer  to  the  bill,  he  shall  pay  to 
the  defendant  the  costs  occasioned  thereby,  and  shall, 
without  delay,  furnish  him  a  fair  copy  thereof,  free 
of  expense,  with  suitable  references  to  the  places 
where  the  same  are  to  be  inserted.  And  if  the  amend- 
ments are  numerous,  he  shall  furnish,  in  like  manner, 
to  the  defendant  a  copy  of  the  whole  bill  as  amended; 
and  if  there  be  more  than  one  defendant,  a  copy  shall 
be  furnished  to  each  defendant  affected  thereby. 

RULE  XXIX. 

Amendment  of  bill. — After  an  answer  or  plea  or  de- 
murrer is  put  in,  and  before  replication,  the  plaintiff 
may,  upon  motion  or  petition,  without  notice,  obtain 
an  order  from  any  judge  of  the  court  to  amend  his 
bill  on  or  before  the  next  succeeding  rule  day,  upon 
payment  of  costs  or  without  payment  of  costs,  as  the 
court  or  a  judge  thereof  may  in  his  discretion  direct. 


183 

But  after  replication  Jfiled,  the  plaintiff  sliall  not  be 
permitted  to  withdraw  it  and  to  amend  his  bill,  except 
upon  a  special  order  of  a  judge  of  the  court,  upon  mo- 
tion or  petition,  after  due  notice  to  the  other  party, 
and  upon  proof  by  affidavit  that  the  same  is  not  made 
for  the  purpose  of  vexation  or  delay,  or  that  the  mat- 
ter of  the  proposed  amendment  is  material,  and  could 
not  with  reasonable  diligence  have  been  sooner  intro- 
duced into  the  bill,  and  upon  the  plaintiff's  submitting 
to  such  other  terms  as  may  be  imposed  by  the  judge 
for  speeding  the  cause. 

EULE  XXX. 

Abandonment  and  proceeding  thereon. — If  the 
plaintiff  so  obtaining  any  order  to  amend  his  bill  after 
answer,  or  plea,  or  demurrer,  or  after  replication,  shall 
not  file  his  amendments  or  amended  bill,  as  the  case 
may  require,  in  the  clerk's  office  on  or  before  the  next 
succeeding  rule  day,  he  shall  be  considered  to  have 
abandoned  the  same,  and  the  cause  shall  proceed  as  if 
no  application  for  any  amendment  had  been  made. 

EULE  XXXI. 

Certificate  of  counsel — Affidavit. — No  demurrer  or 
plea  shall  be  allowed  to  be  filed  to  any  bill  unless  upon 
a  certificate  of  counsel  that  in  his  opinion  it  is  well 
founded  in  point  of  law,  and  supported  by  the  affidavit 
of  the  defendant  that  it  is  not  interposed  for  delay; 
and  if  a  plea,  that  it  is  true  in  point  of  fact. 

EULE  XXXII. 

Defendant  may  demur,  plead  or  answer. — The  de- 
fendant may  at  any  time  before  the  bill  is  taken  for 
confessed,  or  afterward  with  the  leave  of  the  court,  de- 
mur or  plead  to  the  whole  bill,  or  to  part  of  it,  and  he 
may  demur  to  part,  plead  to  part  and  answer  to  the 
residue;  but  in  every  case  in  which  the  bill  specially 
charges  fraud  or  combination,  a  plea  to  such  part  must 
be  accompanied  by  an  answer  fortifying  the  plea  and 
explicitly  denying  the  fraud  and  combination,  and  the 
facts  on  which  the  charge  is  founded. 


184 


RULE  XXXIII. 


Setting  doivn  for  argument. — The  plaintiff  may  set 
down  the  demurrer  or  plea  to  be  argued,  or  he  may 
take  issue  on  the  plea.  If,  upon  an  issue,  the  facts 
stated  in  the  plea  be  determined  for  the  defendant, 
they  shall  avail  him  as  far  as  in  law  and  equity  they 


ought  to  avail  him. 


RULE  XXXIV. 


Proceedings  on  overruling  demurrer  or  plea. — If, 
upon  the  hearing,  any  demurrer  or  plea  is  overruled, 
the  plaintiff  shall  be  entitled  to  his  costs  in  the  cause 
up  to  that  period,  unless  the  court  shall  be  satisfied 
that  the  defendant  has  good  ground,  in  point  of  law  or 
fact,  to  interpose  the  same,  and  it  was  not  interposed 
vexatiously  or  for  delay.  And,  upon  the  overruling  of 
any  plea  or  demurrer,  the  defendant  shall  be  assigned 
to  answer  the  bill,  or  so  much  thereof  as  is  covered  by 
the  plea  or  demurrer,  the  next  succeeding  rule  day,  or 
at  such  other  X->eriod  as,  consistently  with  justice  and 
the  rights  of  the  defendant,  the  same  can,  in  the  judg- 
ment of  the  court,  be  reasonably  done;  in  default 
whereof,  the  bill  shall  be  taken  against  him  pro  con- 
fesso,  and  the  matter  thereof  proceeded  in  and  decreed 
accordingly. 

RULE  XXXV. 

If  sustained — Amendment  of  hill. — If,  upon  the  hear- 
ing, any  demurrer  or  plea  shall  be  allowed,  the  de- 
fendant shall  be  entitled  to  his  costs.  But  the  court 
may,  in  its  discretion,  upon  motion  of  the  plaintiff, 
allow  him  to  amend  his  bill,  upon  such  terms  as  it  shall 
deem  reasonable. 

RULE   XXXVI. 

Extent  of  demurrer  or  plea. — No  demurrer  or  plea 
shall  be  held  bad  and  overruled  upon  argument  only 
because  such  demurrer  or  plea  shall  not  cover  so  much 
of  the  bill  as  it  might  by  law  have  extended  to. 


185 


KULE  XXXVII, 


Answer  as  affecting  demurrer  or  plea. — No  demur- 
rer or  plea  shall  be  held  bad  and  overruled  upon  argu- 
ment only  because  the  answer  of  the  defendant  may- 
extend  to  some  part  of  the  same  matter  as  may  be 
covered  by  such  demurrer  or  plea. 

RULE   XXXVIII. 

Failure  to  reply  or  to  set  doivn  for  argument. — If 
the  plaintiff  shall  not  reply  to  any  plea,  or  set  down 
any  plea  or  demurrer  for  argument,  on  the  rule  day 
when  the  same  is  filed,  or  on  the  next  succeeding  rule 
day,  he  shall  be  deemed  to  admit  the  truth  and  suf- 
ficiency thereof,  and  his  bill  shall  be  dismissed  as  of 
course  unless  a  judge  of  the  court  shall  allow  him 
further  time  for  the  purpose. 

RULE  XXXIX. 

Answer. — The  rule  that  if  a  defendant  submits  to 
answer  he  shall  answer  fully  to  all  the  matters  of  the 
bill  shall  no  longer  apply  in  cases  where  he  might  by 
plea  protect  himself  from  such  answer  and  discovery. 
And  the  defendant  shall  be  entitled  in  all  cases,  by  an- 
swer, to  insist  upon  all  matters  of  defense  (not  being 
matters  of  abatement,  or  to  the  character  of  the  par- 
ties, or  matters  of  form)  in  bar  of  or  to  the  merits  of 
the  bill,  of  which  he  may  be  entitled  to  avail  himself 
by  a  plea  in  bar;  and  in  such  answer  he  shall  not  be 
compellable  to  answer  any  other  matters  than  he  would 
be  compellable  to  answer  and  discover  upon  filing  a 
plea  in  bar  and  an  answer  in  support  of  such  plea, 
touching  the  matters  set  forth  in  the  bill,  to  avoid  or 
repel  the  bar  or  defense.  Thus,  for  example,  a  bona 
fide  purchaser  for  a  valuable  consideration,  without  no- 
tice, may  set  up  that  defense  by  way  of  answer  in- 
stead of  plea,  and  shall  be  entitled  to  the  same  protec- 
tion and  shall  not  be  compellable  to  make  any  further 
answer  or  discovery  of  his  title  than  he  would  be  in 
any  answer  in  support  of  such  plea. 


186 

RULE  XL. 

Interrogatories. — It  shall  not  hereafter  be  necessary 
to  interrogate  a  defendant  specially  and  particularly 
upon  any  statement  in  the  bill,  unless  the  complain- 
ant desires  to  do  so  to  obtain  a  discovery. 

RULE  XLI. 

Interrogatories  continued. —  (1)  The  interrogatories 
contained  in  the  interrogating  part  of  the  bill  shall 
be  divided  as  conveniently  as  may  be  from  each  other, 
and  numbered  consecutively  1,  2,  3,  etc.;  and  the  in- 
terrogatories which  each  defendant  is  required  to  an- 
swer shall  be  specified  in  a  note  at  the  foot  of  the  bill, 
in  the  form  or  to  the  effect  following,  that  is  to  say: 
"The  defendant  (A.  B.)  is  required  to  answer  the  in- 
terrogatories numbered  respectively  1,  2,  3,"  etc.;  and 
the  office  copy  of  the  bill  taken  by  each  defendant  shall 
not  contain  any  interrogatories  except  those  which 
such  defendant  is  so  required  to  answer,  unless  such 
defendant  shall  require  to  be  furnished  with  a  copy 
of  the  whole  bill. 

(2)  If  the  complainant,  in  his  bill,  shall  waive  an 
answer  under  oath,  or  shall  only  require  an  answer 
under  oath  with  regard  to  certain  specified  interroga- 
tories, the  answer  of  the  defendant,  though  under  oath, 
except  such  part  thereof  as  shall  be  directly  respon- 
sive to  such  interrogatories,  shall  not  be  evidence  in 
his  favor,  unless  the  cause  be  set  down  for  hearing  on 
bill  and  answer  only;  but  m^ay,  nevertheless,  be  used 
as  an  affidavit,  with  the  same  effect  as  heretofore,  on 
a  motion  to  grant  or  dissolve  an  injunction,  or  on  any 
other  incidental  motion  in  the  cause ;  but  this  shall  not 
prevent  a  defendant  from  becoming  a  witness  in  his 
own  behalf  under  section  3  of  the  act  of  congress  of 
July  2,  1864. 

RULE  XLII. 

Note  specifying  interrogatories  to  he  answered  part 
of  hill. — The  note  at  the  foot  of  the  l)i]l  specifying  the 
interrogatories  which  each  defendant  is  required  to 
answer  shall  be  considered  and  treated  as  part  of  the 
bill;  and  the  addition  of  any  such  note  to  the  bill,  or 


187 

any  alteration  in  or  addition  to  such  note,  after  the  bill 
is  filed,  shall  be  considered  and  treated  as  an  amend- 
ment of  the  bill. 

RULE  XLIII. 

Form  when  interrogatories  are  used. — Instead  of 
the  words  of  the  bill  now  in  use,  preceding  the  inter- 
rogating part  thereof,  and  beginning  with  the  words : 
''To  the  end,  therefore,"  there  shall  hereafter  be  used 
words  in  the  form  or  to  the  effect  following :  "To  the 
end,  therefore,  that  the  said  defendants  may,  if  they 
can,  show  why  your  orator  should  not  have  the  relief 
hereby  prayed,  and  may,  upon  their  several  and  re- 
spective corporal  oaths,  and  according  to  the  best  and 
utmost  of  their  several  and  respective  knowledge,  re- 
membrance, information  and  belief,  full,  true,  direct  and 
perfect  answer  make  to  such  of  the  several  interroga- 
tories hereinafter  numbered  and  set  forth  as  by  the 
note  hereunder  written  they  are  respectively  required 
to  answer ;  that  is  to  say — 

*'!.    Whether,  etc. 

"2.    Whether,"  etc. 

RULE  XLIV. 

When  interrogatories  need  not  he  answered. — A  de- 
fendant shall  be  at  liberty,  by  answer,  to  decline  an- 
swering any  interrogatory,  or  part  of  an  interroga- 
tory, from  answering  which  he  might  have  protected 
himself  by  demurrer;  and  he  shall  be  at  liberty  so  to 
decline  notwithstanding  he  shall  answer  other  parts 
of  the  bill  from  which  he  might  have  protected  himself 
by  demurrer. 

RULE  XLV. 

Special  replication  not  alloived. — No  special  replica- 
tion to  any  answer  shall  be  filed.  But  if  any  matter 
alleged  in  the  answer  shall  make  it  necessary  for  the 
plaintiff  to  amend  his  bill,  he  may  have  leave  to  amend 
the  same  with  or  without  payment  of  costs,  as  the 
court,  or  a  judge  thereof,  may  in  its  discretion  direct. 


188 


KULE  XLVI. 

Answer  to  amended  hill. — In  every  case  where  an 
amendment  shall  be  made  after  answer  filed,  the  de- 
fendant shall  put  in  a  new  or  supplemental  answer  on 
or  before  the  next  succeeding  rule  day  after  that  on 
which  the  amendment  or  bill  is  filed,  unless  the  time 
is  enlarged  or  otherwise  ordered  by  a  judge  of  the 
court;  and  upon  his  default,  the  like  proceedings  may 
be  had  as  in  cases  of  an  omission  to  put  in  an  an- 
swer. 

KULE   XLVII. 

Omission  of  parties. — In  all  cases  where  it  shall  ap- 
pear to  the  court  that  persons,  who  might  otherwise 
be  deemed  necessary  or  proper  parties  to  the  suit, 
cannot  be  made  parties  by  reason  of  their  being  out 
of  the  jurisdiction  of  the  court,  or  incapable  otherwise 
of  being  made  parties,  or  because  their  joinder  would 
oust  the  jurisdiction  of  the  court  as  to  the  parties  be- 
fore the  court,  the  court  may  in  its  discretion  pro- 
ceed in  the  cause  without  making  such  persons  par- 
ties; and  in  such  cases  the  decree  shall  be  without 
prejudice  to  the  rights  of  the  absent  parties. 

RULE  XLVIII. 

Parties,  ivlien  numerous. — Where  the  parties  on 
either  side  are  very  numerous,  and  cannot,  without 
manifest  inconvenience  and  oppressive  delays  in  the 
suit,  be  all  brought  before  it,  the  court,  in  its  discre- 
tion, may  dispense  with  making  all  of  them  parties, 
and  may  proceed  in  the  suit,  having  sufficient  parties 
before  it  to  represent  all  the  adverse  interests  of  the 
plaintiffs  and  the  defendants  in  the  suit  properly  be- 
fore it.  But,  in  such  cases,  the  decree  shall  be  without 
prejudice  to  the  rights  and  claims  of  all  the  absent 
parties. 

RULE  XLIX. 

Suits  hy  trustees. — In  all  suits  concerning  real  es- 
tate which  is  vested  in  trustees  by  devise,  and  such 
trustees  are  competent  to  sell  and  give  discharges  for 
the  proceeds  of  the  sale,  and  for  the  rents  and  profits 
of  the  estate,  such  trustees  shall  represent  the  persons 


189 

beneficially  interested  in  the  estate,  or  the  proceeds, 
or  the  rents  and  profits,  in  the  same  manner  and  to  the 
same  extent  as  the  executors  or  administrators  in 
suits  concerning  personal  estate  represent  the  per- 
sons beneficially  interested  in  such  personal  estate; 
and  in  such  cases  it  shall  not  be  necessary  to  make  the 
persons  beneficially  interested  in  such  real  estate,  or 
rents  and  profits,  parties  to  the  suit;  but  the  court 
may,  upon  consideration  of  the  matter  on  the  hearing, 
if  it  shall  so  think  fit,  order  such  persons  to  be  made 
parties. 

EULE  L. 

Heir,  when  party,  and  when  not. — In  suits  to  exe- 
cute the  trusts  of  a  will,  it  shall  not  be  necessary  to 
make  the  heir  at  law  a  party ;  but  the  plaintiff  shall  be 
at  liberty  to  make  the  heir  at  law  a  party  where  he 
desires  to  have  the  will  established  against  him. 

RULE  L.I. 

Joint  and  several  demands. — In  all  cases  in  which 
the  plaintiff  has  a  joint  and  several  demand  against 
several  persons,  either  as  principals  or  sureties,  it 
shall  not  be  necessary  to  bring  iDcfore  the  court  as 
parties  to  a  suit  concerning  such  demand  all  the  per- 
sons liable  thereto;  but  the  plaintiff  may  proceed 
against  one  or  more  of  the  persons  severally  liable. 

RULE  LII. 

Defect  of  parties. — Where  the  defendant  shall,  by 
his  answer,  suggest  that  the  bill  is  defective  for  want 
of  parties,  the  plaintiff  shall  be  at  liberty,  within 
fourteen  days  after  answer  filed,  to  set  down  the  cause 
for  argument  upon  that  objection  only;  and  the  pur- 
pose for  which  the  same  is  so  set  down  shall  be  noti- 
fied by  an  entry,  to  be  made  in  the  clerk's  order  book, 
in  the  form  or  to  the  effect  following,  that  is  to  say: 
*'Set  down  upon  the  defendant's  objection  for  want  of 
parties."  And  where  the  plaintiff  shall  not  so  set 
down  his  cause,  but  shall  proceed  therewith  to  a  hear- 
ing, notwithstanding  an  objection  for  want  of  parties 
taken  by  the  answer,  he  shall  not,  at  the  hearing  of 


190 

the  cause,  if  the  defendant's  objection  shall  then  be 
allowed,  be  entitled  as  of  course  to  an  order  for  liberty 
to  amend  his  bill  by  adding  parties.  But  the  court,  if 
it  thinks  fit,  shall  be  at  liberty  to  dismiss  the  bill. 

RULE  LIII. 

Objection  of  defect  of  parties. — If  a  defendant  shall, 
at  the  hearing  of  a  cause,  object  that  a  suit  is  defect- 
ive for  want  of  parties,  not  having  by  plea  or  answer 
taken  the  objection,  and  therein  specified  by  name  or 
description  the  parties  to  whom  the  objection  applies, 
the  court,  if  it  shall  think  fit,  shall  be  at  liberty  to 
make  a  decree  saving  the  rights  of  the  absent  parties. 

RULE  LIV. 

Nominal  parties. — Where  no  account,  payment,  con- 
veyance or  other  direct  relief  is  sought  against  a  party 
to  a  suit,  not  being  an  infant,  the  party,  upon  service 
of  the  subpoena  upon  him,  need  not  appear  and  answer 
the  bill,  unless  the  plaintiff  specially  requires  him  so 
to  do  by  the  prayer  of  his  bill ;  but  he  may  appear  and 
answer  at  his  option;  and  if  he  does  not  appear  and 
answer,  he  shall  be  bound  by  all  the  proceedings  in  the 
cause.  If  the  plaintiff  shall  require  him  to  appear  and 
answer,  he  shall  be  entitled  to  the  costs  of  all  the  pro- 
ceedings against  him,  unless  the  court  shall  otherwise 
direct. 

RULE  LV. 

Injunctions. — Whenever  an  injunction  is  asked  for 
by  the  bill  to  stay  proceedings  at  law,  if  the  defendant 
does  not  enter  his  appearance,  and  plead,  demur  or  an- 
swer to  the  same  within  the  time  prescribed  therefor 
by  these  rules,  the  plaintiff  shall  be  entitled,  as  of 
course,  upon  motion,  without  notice,  to  such  injunc- 
tion. But  special  injunctions  shall  be  grantable  only 
upon  due  notice  to  the  other  party  by  the  court  in 
term,  or  by  a  judge  thereof  in  vacation,  after  a  hearing, 
which  may  be  ex  parte,  if  the  adverse  party  does  not 
appear  at  the'  time  and  place  ordered.  In  every  case 
where  an  injunction — either  the  common  injunction  or 
a  special  injunction — is  awarded  in  vacation,  it  shall, 


191 

unless  previously  dissolved  by  the  judge  granting  the 
same,  continue  until  the  next  term  of  the  court,  or  un- 
til it  is  dissolved  by  some  other  order  of  the  court. 

EULE  LVI. 

Revivor  of  suit. — Whenever  a  suit  in  equity  shall  be- 
come abated  hy  the  death  of  either  party,  or  by  any 
other  event,  the  same  may  be  revived  by  a  bill  of  re- 
vivor, or  a  bill  in  the  nature  of  a  bill  of  revivor,  as 
the  circumstances  of  the  case  may  require,  filed  by  the 
proper  ]iarties  entitled  to  revive  the  same;  which  bill 
may  be  filed  in  the  clerk's  office  at  any  time,  and,  upon 
suggestion  of  the  facts,  the  proper  process  of  subpoena 
shall,  as  of  course,  be  issued  by  the  clerk,  requiring  the 
proper  representatives  of  the  other  party  to  appear 
and  show  cause,  if  any  they  have,  why  the  cause 
should  not  be  revived.  And  if  no  cause  shall  be  shown 
at  the  next  rule  day,  which  shall  occur  after  fourteen 
days  from  the  time  of  the  service  of  the  same  process, 
the  suit  shall  stand  revived,  as  of  course. 

EULE  LVII. 

Supplemental  hill. — "Whenever  a  suit  in  equity  shall 
become  defective  from  any  event  happening  after  the 
filing  of  the  bill,  as,  for  example,  by  change  of  interest 
in  the  parties,  or  for  any  other  reason,  and  a  supple- 
mental bill,  or  a  bill  in  the  nature  of  a  supplemental 
bill,  may  be  necessary  to  be  filed  in  the  cause,  leave  to 
file  the  same  may  be  granted  by  any  judge  of  the  court  on 
any  rule  day,  upon  proper  cause  shown  and  due  notice 
to  the  other  party.  And  if  leave  is  granted  to  file  such 
supplemental  bill,  the  defendant  shall  demur,  plead  or 
answer  thereto  on  the  next  succeeding  rule  day  after 
the  supplemental  bill  is  filed  in  the  clerk's  office,  unless 
some  other  time  shall  be  assigned  by  a  judge  of  the 
court. 

EULE  LVIII. 

Bill  of  revivor  or  supplemetit. — It  shall  not  be  neces- 
sary in  any  bill  of  revivor  or  supplemental  bill  to  set 
forth  any  of  the  statements  in  the  original  suit,  unless 
the  special  circumstances  of  the  case  may  require  it. 


192 


LIX. 


Answer  verified  before  whom. — Every  defendant 
may  swear  to  his  answer  before  any  justice  or  jndge  of 
any  court  of  the  United  States,  or  before  any  commis- 
sioner appointed  by  any  Circuit  Court  to  take  testi- 
mony or  depositions,  or  before  any  master  in  chan- 
cery appointed  by  any  Circuit  Court,  or  before  any 
judge  of  any  court  of  a  state  or  territory,  or  notary 
public. 

EULE  LX. 

Amendment  of  ansiver. — After  an  answer  is  put  in, 
it  may  be  amended  as  of  course  in  any  matter  of  form, 
or  by  filling  up  a  blank,  or  correcting  a  date,  or  refer- 
ence to  a  document,  or  other  small  matter,  and  be  re- 
sworn, at  any  time  before  a  replication  is  put  in,  or 
the  cause  is  set  down  for  a  hearing  upon  bill  and  an- 
swer. But  after  replication  or  such  setting  down  for 
a  hearing,  it  shall  not  be  amended  in  any  material  mat- 
ters, as  by  adding  new  facts  or  defenses,  or  qualify- 
ing or  altering  the  original  statements,  except  by 
special  leave  of  the  court,  or  of  a  judge  thereof,  upon 
motion  and  cause  shown,  after  due  notice  to  the  ad- 
verse party,  supported,  if  required,  by  affidavit;  and 
in  every  case  where  leave  is  so  granted,  the  court  or 
the  judge  granting  the  same  may,  in  his  discretion,  re- 
quire that  the  same  be  separately  engrossed  and  added 
as  a  distinct  amendment  to  the  original  answer,  so 
as  to  be  distinguishable  therefrom. 

BULE  LXI. 

Exceptions  for  insufficiency. — After  an  answer  is 
filed  on  any  rule  day,  the  plaintiff  shall  ])e  allowed  un- 
til the  next  succeeding  rule  day  to  file  in  the  clerk's 
office  exceptions  thereto  for  insufficiency,  and  no 
longer,  unless  a  longer  time  shall  be  allowed  for  the 
purpose,  upon  cause  shown  to  the  court,  or  a  judge 
thereof;  and,  if  no  exception  shall  be  filed  thereto 
within  that  period,  the  answer  shall  be  deemed  and 
taken  to  be  sufficient. 


193 


RULE  LXII. 

Costs  of  separate  answers. — When  the  same  solicitor 
is  employed  for  two  or  more  defendants,  and  separate 
answers  shall  be  filed,  or  other  proceedings  had,  by 
two  or  more  of  the  defendants  separately,  costs  shall 
not  be  allowed  for  such  separate  answers,  or  other 
proceedings,  unless  a  master,  upon  reference  to  him, 
shall  certify  that  such  separate  answers  and  other  pro- 
ceedings were  necessary  or  proper,  and  ought  not  to 
have  been  joined  together. 

RULE   LXIII. 

Setting  down  exceptions  for  argument. — Where  ex- 
ceptions shall  be  filed  to  the  answer  for  insufficiency, 
within  the  period  prescribed  by  these  rules,  if  the  de- 
fendant shall  not  submit  to  the  same  and  file  an 
amended  answer  on  the  next  succeeding  rule  day,  the 
plaintiff  shall  forthwith  set  them  down  for  a  hearing 
on  the  next  succeeding  rule  day  thereafter,  before  a 
judge  of  the  court,  and  shall  enter,  as  of  course,  in 
the  order  book,  an  order  for  that  purpose;  and  if  he 
shall  not  so  set  down  the  same  for  a  hearing,  the  ex- 
ceptions shall  be  deemed  abandoned,  and  the  answer 
shall  be  deemed  sufficient;  provided,  however,  that  the 
court,  or  any  judge  thereof,  may,  for  good  cause 
shown,  enlarge  the  time  for  filing  exceptions,  or  for 
answering  the  same,  in  his  discretion,  upon  such  terms 
as  he  may  deem  reasonable. 

RULE  LXIV. 

If  exceptions  sustained,  further  answer. — If,  at  the 
hearing,  the  exceptions  shall  be  allowed,  the  defendant 
shall  be  bound  to  put  in  a  full  and  complete  answer 
thereto  on  the  next  succeeding  rule  day;  otherwise,  the 
plaintiff  shall,  as  of  course,  be  entitled  to  take  the 
bill,  so  far  as  the  matter  of  such  exceptions  is  con- 
cerned, as  confessed,  or,  at  his  election,  he  may  have  a 
writ  of  attachment  to  compel  the  defendant  to  make  a 
better  answer  to  the  matter  of  the  exceptions ;  and  the 
defendant,  when  he  is  in  custody  upon  such  writ,  shall 
not  be  discharged  therefrom  but  by  an  order  of  the 


194 

court,  or  of  a  judge  thereof,  upon  liis  putting  in  sucli 
answer,  and  complying  with  such  other  terms  as  the 
court  or  judge  may  direct. 

RULE  LXV. 

Costs  on  exceptions. — If,  upon  argument,  the  plaint- 
iff's exceptions  to  the  answer  shall  be  overruled,  or 
the  answer  shall  be  adjudged  insufficient,  the  prevail- 
ing party  shall  be  entitled  to  all  the  costs  occasioned 
thereby,  unless  otherwise  directed  by  the  court,  or  the 
judge  thereof,  at  the  hearing  upon  the  exceptions. 

RULE  LXVI. 

Replication. — Whenever  the  answer  of  the  defend- 
ant shall  not  be  excepted  to,  or  shall  be  adjudged  or 
deemed  sufficient,  the  plaintiff  shall  file  the  general 
replication  thereto  on  or  before  the  next  succeeding 
rule  day  thereafter ;  and  in  all  cases  where  the  general 
replication  is  filed,  the  cause  shall  be  deemed,  to  all 
intents  and  purposes,  at  issue,  without  any  rejoinder 
or  other  pleading  on  either  side.  If  the  plaintiff  shall 
omit  or  refuse  to  file  such  replication  within  the  pre- 
scribed period,  the  defendant  shall  be  entitled  to  an 
order,  as  of  course,  for  a  dismissal  of  the  suit;  and 
the  suit  shall  thereupon  stand  dismissed,  unless  the 
court,  or  a  judge  thereof,  shall,  upon  motion,  for  cause 
shown,  allow  a  replication  to  be  filed  nunc  pro  tunc, 
the  plaintiff  submitting  to  speed  the  cause,  and  to  such 
other  terms  as  may  be  directed. 

RULE  LXVII. 

Testimony — How  taken. — (1)  After  the  cause  is  at 
issue,  commissions  to  take  testimony  may  be  taken  out 
in  vacation  as  well  as  in  term,  jointly  by  both  parties, 
or  severally  by  either  party,  upon  interrogatories  filed 
by  the  party  taking  out  the  same  in  the  clerk's  office, 
ten  days'  notice  thereof  being  given  to  the  adverse 
party  to  file  cross-interrogatories  before  the  issuing 
of  the  commission ;  and  if  no  cross-interrogatories  are 
filed  at  the  expiration  of  the  time,  the  commission  may 
issue  ex  parte.    In  all  cases  the  commissioner  or  com- 


195 

missioners  shall  be  named  by  the  court  or  by  a  judge 
thereof.  Ordered,  that  the  sixty-seventh  rule  govern- 
ing equity  practice  be  so  amended  as  to  allow  the  pre- 
siding judge  of  any  court  exercising  jurisdiction, 
either  in  term  time  or  in  vacation,  to  vest  in  the  clerk 
of  said  court  general  power  to  name  commissioners 
to  take  testimonj^  in  like  manner  that  the  court  or 
judge  thereof  can  now  do  by  the  said  sixty-seventh 
rule. 

(2)  Either  party  may  give  notice  to  the  other  that 
he  desires  the  evidence  to  be  adduced  in  the  cause  to 
be  taken  orally ;  and  thereupon  all  the  witnesses  to  be 
examined  shall  be  examined  before  one  of  the  examin- 
ers of  the  court  or  before  an  examiner  to  be  specially 
appointed  by  the  court.  The  examiner,  if  he  so  re- 
quests, shall  be  furnished  with  a  copy  of  the  pleadings; 
and  such  examination  shall  take  place  in  the  presence  of 
the  parties  or  their  agents,  by  their  counsel  or  solicit- 
ors, and  the  witnesses  shall  be  subject  to  cross-ex- 
amination and  re-examination,  and  such  examinations 
shall  be  conducted  as  near  as  may  be  in  the  mode  now 
used  in  common-law  courts.  The  depositions  taken 
upon  such  oral  examinations  shall  be  reduced  to  writ- 
ing by  the  examiner,  in  the  form  of  question  put  and 
answer  given;  provided,  that,  by  consent  of  parties, 
the  examiner  may  take  down  the  testimony  of  any 
witness  in  the  form  of  narrative. 

At  the  request  of  either  party,  with  reasonable  no- 
tice, the  deposition  of  any  witness  shall,  under  the  di- 
rection of  the  examiner,  be  taken  down  either  by  a 
skilful  stenographer  or  by  a  skilful  typewriter,  as  the 
examiner  may  elect,  and  when  taken  stenographically 
shall  be  put  into  typewriting  or  other  writing;  pro- 
vided, that  such  stenographer  or  typewriter  has  been 
appointed  by  the  court,  or  is  approved  by  both  par- 
ties. 

The  testimony  of  each  witness,  after  such  reduction 
to  writing,  shall  be  read  over  to  him  and  signed  by 
him  in  the  presence  of  the  examiner  and  of  such  of  the 
parties  or  counsel  as  may  attend ;  provided,  that  if  the 
witness  shall  refuse  to  sign  his  deposition  so  taken, 


196 

then  the  examiner  shall  sign  the  same,  stating  upon 
the  record  the  reasons,  if  any,  assigned  by  the  witness 
for  such  refusal. 

The  examiner  may,  upon  all  examinations,  state  any 
special  matters  to  the  court  as  he  shall  think  fit;  and 
any  question  or  questions  which  may  be  objected  to 
shall  be  noted  by  the  examiner  upon  the  deposition, 
but  he  shall  not  have  power  to  decide  on  the  compe- 
tency, materiality  or  relevancy  of  the  questions;  and 
the  court  shall  have  power  to  deal  with  the  costs  of 
incompetent,  immaterial  or  irrelevant  depositions,  or 
parts  of  them,  as  may  be  just. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn, 
or  to  answer  any  question  put  by  the  examiner,  or  by 
counsel  or  solicitor,  the  same  practice  shall  be  adopted 
as  is  now  practiced  with  respect  to  witnesses  to  be 
produced  on  examination  before  an  examiner  of  said 
court  on  written  interrogatories. 

Notice  shall  be  given  by  the  respective  counsel  or 
solicitors  to  the  opposite  counsel  or  solicitors,  or  par- 
ties, of  the  time  and  place  of  the  examination,  for  such 
reasonable  time  as  the  examiner  may  fix  by  order  in 
each  cause. 

When  the  examination  of  witnesses  before  the  ex- 
aminer is  concluded,  the  original  depositions,  authen- 
ticated by  the  signature  of  the  examiner,  shall  be 
transmitted  by  him  to  the  clerk  of  the  court,  to  be 
there  filed  of  record,  in  the  same  mode  as  prescribed 
in  section  865  of  the  Revised  Statutes. 

Testimony  may  be  taken  on  commission  in  the  usual 
way,  by  written  interrogatories  and  cross-interroga- 
tories, on  motion  to  the  court  in  term  time,  or  to  a 
judge  in  vacation,  for  special  reasons,  satisfactory  to 
the  court  or  judge. 

Where  the  evidence  to  be  adduced  in  a  cause  is  to 
be  taken  orally,  as  before  provided,  the  court  may,  on 
motion  of  either  party,  assign  a  time  within  which  the 
complainant  shall  take  his  evidence  in  support  of  the 
bill,  and  a  time  thereafter  within  which  the  defendant 
shall  take  his  evidence  in  defense,  and  a  time  there- 
after within  which  the  complainant  shall  take  his  evi- 


197 

dence  in  reply;  and  no  further  evidence  shall  be  taken 
in  the  cause,  unless  by  agreement  of  the  parties  or  by 
leave  of  court  first  obtained,  on  motion  for  cause 
shown. 

The  expense  of  the  taking  down  of  depositions  by  a 
stenographer  and  of  putting  them  into  typewriting  or 
other  writing  shall  be  paid  in  the  first  instance  by  the 
party  calling  the  witness,  and  shall  be  imposed  by  the 
court,  as  part  of  the  costs,  upon  such  party  as  the 
court  shall  adjudge  should  ultimately  bear  them. 

Upon  due  notice  given  as  prescribed  by  previous  or- 
der, the  court  may,  at  its  discretion,  permit  the  whole, 
or  any  specific  part,  of  the  evidence  to  be  adduced 
orally  in  open  court  on  final  hearing. 

KULE  LXVIII. 

Under  acts  of  congress. — Testimony  may  also  be 
taken  in  the  cause,  after  it  is  at  issue,  by  deposition, 
according  to  the  acts  of  congress.  But  in  such  case, 
if  no  notice  is  given  to  the  adverse  party  of  the  time 
and  place  of  taking  the  deposition,  he  shall,  upon  motion 
and  affidavit  of  the  fact,  be  entitled  to  a  cross-examina- 
tion of  the  witness,  either  under  a  commission  or  by 
a  new  deposition  taken  under  the  acts  of  congress,  if 
a  court  or  judge  thereof  shall,  under  all  the  circum- 
stances, deem  it  reasonable. 

KULE  LXIX. 

Time  for  testimony. — Three  months,  and  no  more, 
shall  be  allowed  for  the  taking  of  testimony  after  the 
cause  is  at  issue,  unless  the  court,  or  a  judge  thereof, 
shall,  upon  special  cause  shown  by  either  party,  en- 
large the  time;  and  no  testimony  taken  after  such 
period  shall  be  allowed  to  be  read  in  evidence  at  the 
hearing.  Immediately  upon  the  return  of  the  com- 
missions and  depositions  containing  the  testimony  into 
the  clerk's  office,  publication  thereof  may  be  ordered  in 
the  clerk's  office,  by  any  judge  of  the  court,  upon  due 
notice  to  the  parties,  or  it  may  be  enlarged,  as  he  may 
deem  reasonable  under  all  the  circumstances;  but,  by 
consent  of  the  parties,  publication  of  the  testimony 


198 

may  at  any  time  pass  into  the  clerk's  office,  such  con- 
sent being  in  writing,  and  a  copy  thereof  entered  in 
the  order  books,  or  indorsed  upon  the  deposition  or 
testimony. 

ETJLB  LXX. 

Infirm,  single,  or  about  to  depart. — After  any  bill 
filed,  and  before  the  defendant  has  answered  the 
same,  upon  affidavit  made  that  any  of  plaintiff's  wit- 
nesses are  aged  and  infirm,  or  going  out  of  the  country, 
or  that  any  one  of  them  is  a  single  witness  to  a  ma- 
terial fact,  the  clerk  of  the  court  shall,  as  of  course, 
upon  the  application  of  the  plaintiff,  issue  a  commis- 
sion to  such  commissioner  or  commissioners  as  a  judge 
of  the  court  may  direct  to  take  the  examination  of  such 
witness  or  witnesses  de  bene  esse,  upon  giving  due 
notice  to  the  adverse  party  of  the  time  and  place  of 
taking  his  testimony. 

KULE  LXXI. 

Last  interrogatory. — The  last  interrogatory  in  the 
written  interrogatories  to  take  testimony  now  com- 
monly in  use  shall  in  the  future  be  altered,  and  stated 
in  substance  thus:  "Do  you  know,  or  can  you  set 
forth,  any  other  matter  or  thing  which  may  be  a  bene- 
fit or  advantage  to  the  parties  at  issue  in  this  cause, 
or  either  of  them,  or  that  may  be  material  to  the  sub- 
ject of  this  your  examination,  or  the  matters  in  ques- 
tion in  this  cause!  If  yea,  set  forth  the  same  fully 
and  at  large  in  your  answer." 

KULE  LXXII. 

Cross-bill  —  Answer  to.  —  Where  a  defendant  in 
equity  files  a  cross-bill  for  discovery  only  against  the 
plaintiff  in  the  original  bill,  the  defendant  to  the  origi- 
nal bill  shall  first  answer  thereto  before  the  original 
plaintiff  shall  be  compellable  to  answer  the  cross-bill. 
The  answer  o'f  the  original  plaintiff  to  such  cross-bill 
may  be  read  and  used  by  the  party  filing  the  cross-bill 
at  the  hearing,  in  the  same  manner  and  under  the  same 
restrictions  as  the  answer  praying  relief  may  now  be 
read  and  used. 


199 


RULE  LXXIII. 

Account  of  estate. — Every  decree  for  an  account  of 
the  personal  estate  of  a  testator  or  intestate  shall 
contain  a  direction  to  the  master  to  whom  it  is  referred 
to  take  the  same  to  inquire  and  state  to  the  court  what 
parts,  if  any,  of  such  personal  estate  are  outstanding 
or  undisposed  of,  unless  the  court  shall  otherwise  di- 
rect. 

RULE  LXXIV. 

Proceedings  on  reference. — Whenever  any  reference 
of  any  matter  is  made  to  a  master  to  examine  and  re- 
port thereon,  the  party  at  whose  instance  or  for  whose 
benefit  the  reference  was  made  shall  cause  the  same 
to  be  presented  to  the  master  for  hearing  on  or  be- 
fore the  next  rule  day  succeeding  the  time  when  the 
reference  is  made;  if  he  shall  omit  to  do  so,  the  ad- 
verse party  shall  be  at  liberty  forthwith  to  cause  pro- 
ceedings to  be  had  before  the  master,  at  the  costs  of 
the  party  procuring  the  reference. 

RULE  LXXV. 

Master,  proceedings  before. — Upon  every  such  ref- 
erence, it  shall  be  the  duty  of  the  master,  as  soon  as 
he  reasonably  can  after  the  same  is  brought  before 
him,  to  assign  a  time  and  place  for  proceedings  in  the 
same,  and  to  give  due  notice  thereof  to  each  of  the 
parties  or  their  solicitors ;  and  if  either  party  shall  fail 
to  appear  at  the  time  and  place  appointed,  the  master 
shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  dis- 
cretion, to  adjourn  the  examination  and  proceedings 
to  a  future  day,  giving  notice  to  the  absent  party  or 
his  solicitor  of  such  adjournment;  and  it  shall  be  the 
duty  of  the  master  to  proceed  with  all  reasonable  dili- 
gence in  every  such  reference,  and  with  the  least  prac- 
ticable delay,  and  either  party  shall  be  at  liberty  to 
apply  to  the  court,  or  a  judge  thereof,  for  an  order 
to  the  master  to  speed  the  proceedings  and  to  make 
his  report,  and  to  certify  to  the  court  or  judge  the  rea- 
sons for  any  delay. 


200 


EULE  LXXVI. 

Master's  report. — In  the  reports  made  by  the  master 
to  the  court,  no  part  of  any  state  of  facts,  charge, 
affidavit,  deposition,  examination  or  answer  brought  in 
or  used  before  him  shall  be  stated  or  recited.  But 
such  state  of  facts,  charge,  affidavit,  deposition,  ex- 
amination or  answer  shall  be  identified,  specified  and 
referred  to,  so  as  to  inform  the  court  what  state  of 
facts,  charge,  affidavit,  deposition  or  answer  was  so 
brought  in  or  used. 

KULE  LXXVII. 

Duty  and  power  of  master. — The  master  shall  regu- 
late all  the  proceedings  in  every  hearing  before  him 
upon  every  such  reference ;  and  he  shall  have  full  au- 
thority to  examine  the  parties  in  the  cause,  upon  oath, 
touching  all  matters  contained  in  the  reference;  and 
also  to  require  the  production  of  all  books,  papers, 
writings,  vouchers  and  other  documents  applicable 
thereto;  and  also  to  examine  on  oath,  viva  voce,  all 
witnesses  produced  by  the  parties  before  him,  and  to 
order  the  examination  of  other  witnesses  to  be  taken 
under  a  commission  to  be  issued  upon  his  certificate 
from  the  clerk's  office  or  by  deposition,  according  to 
the  acts  of  congress,  or  otherwise,  as  hereinafter  pro- 
vided; and  also  to  direct  the  mode  in  which  the  mat- 
ters requiring  evidence  shall  be  proved  before  him; 
and  generally  to  do  all  other  acts,  and  direct  all  other 
inquiries  and  proceedings  in  the  matters  before  him, 
which  he  may  deem  necessary  and  proper  to  the  justice 
and  merits  thereof  and  the  rights  of  the  parties. 

BULE  LXXVIII. 

Attendance  of  witnesses. — Witnesses  who  live  within 
the  district  may,  upon  due  notice  to  the  opposite  party, 
be  sununoned  to  appear  before  the  commissioner  ap- 
pointed to  take  testimony,  or  before  a  master  or  ex- 
aminer appointed  in  any  cause,  by  subpoena  in  the 
usual  form,  which  may  be  issued  by  the  clerk  in  blank, 
and  filled  up  by  the  party  praying  the  same,  or  by  the 
commissioner,  master  or  examiner,  requiring  the  at- 


201 

tendance  of  the  witnesses  at  the  time  and  place  speci- 
fied, who  shall  be  allowed  for  attendance  the  same 
compensation  as  for  attendance  in  court;  and  if  any 
witness  shall  refuse  to  appear  or  give  evidence,  it  shall 
be  deemed  a  contempt  of  the  court,  which  being  certi- 
fied to  the  clerk's  office  by  the  commissioner,  master 
or  examiner,  an  attachment  may  issue  thereupon  by 
order  of  the  court  or  of  any  judge  thereof,  in  the  same 
manner  as  if  the  contempt  were  for  not  attending,  or 
for  refusing  to  give  testimony  in  the  court.  But  noth- 
ing herein  contained  shall  prevent  the  examination  of 
witnesses  viva  voce  when  produced  in  open  court,  if 
the  court  shall,  in  its  discretion,  deem  it  advisable. 

RULE  LXXIX. 

Form  of  accounts. — All  parties  accounting  before  a 
master  shall  bring  in  their  respective  accounts  in  the 
form  of  debtor  and  creditor;  and  any  of  the  other 
parties  who  shall  not  be  satisfied  with  the  accounts  so 
brought  in  shall  be  at  liberty  to  examine  the  account- 
ing party  viva  voce,  or  upon  interrogatories,  in  the 
master's  office,  or  by  deposition,  as  the  master  shall 
direct. 

RULE  LXXX. 

What  used  before  master. — All  affidavits,  deposi- 
tions and  documents  which  have  been  previously  made, 
read  or  used  in  the  court  upon  any  proceeding  in  any 
cause  or  matter  may  be  used  before  the  master. 

RULE  LXXXI. 

Who  may  be  examined. — The  master  shall  be  at  lib- 
erty to  examine  any  creditor  or  other  person  coming 
in  to  claim  before  him,  either  upon  written  interroga- 
tories or  viva  voce,  or  in  both  modes,  as  the  nature  of 
the  case  may  appear  to  require.  The  evidence  upon 
such  examinations  shall  be  taken  down  by  the  master, 
or  by  some  other  person  by  his  order  and  in  his  pres- 
ence, if  either  party  requires  it,  in  order  that  the  same 
may  be  used  by  the  court,  if  necessary. 


202 


KULE  LXXXII. 


Appointment — Fees. — The  Circuit  Courts  may  ap- 
point standing  masters  in  chancery  in  their  respective 
districts  (a  majority  of  all  the  judges  thereof,  includ- 
ing the  justice  of  the  Supreme  Court,  the  circuit 
judges,  and  the  district  judge  for  the  district  concur- 
ring in  the  appointment) ;  and  they  may  also  appoint 
a  master  pro  hac  vice  in  any  particular  case.  The 
compensation  to  be  allowed  to  every  master  in  chan- 
cery for  his  services  in  any  particular  case  shall  be 
fixed  by  the  Circuit  Court,  in  its  discretion,  having  re- 
gard to  all  the  circumstances  thereof;  and  the  com- 
pensation shall  be  charged  upon  and  borne  by  such  of 
the  parties  in  the  cause  as  the  court  shall  direct.  The 
master  shall  not  retain  his  report  as  security  for  his 
compensation;  but,  when  the  compensation  is  allowed 
by  the  court,  he  shall  be  entitled  to  an  attachment  for 
the  amount  against  the  party  who  is  ordered  to  pay  the 
same,  if,  upon  notice  thereof,  he  does  not  pay  it  within 
the  time  prescribed  by  the  court. 

EULE  LXXXIII. 

Return  and  entry  of  master^s  report. — The  master, 
as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office,  and  the  day  of  the  return  shall 
be  entered  by  the  clerk  in  the  order  book.  The  parties 
shall  have  one  month  from  the  time  of  filing  the  report 
to  file  exceptions  thereto,  and,  if  no  exceptions  are 
within  that  period  filed  by  either  party,  the  report 
shall  stand  confirmed  on  the  next  rule  day  after  the 
month  is  expired.  If  exceptions  are  filed,  they  shall 
stand  for  hearing  before  the  court  if  the  court  is  then 
in  s^ession,  or,  if  not,  then  at  the  next  sitting  of  the 
court  which  shall  be  held  thereafter,  by  adjournment 
or  otherwise. 

RULE  LXXXIV. 

Costs  on  frivolous  causes. — In  order  to  prevent 
exceptions  to  reports  from  being  filed  for  frivolous 
causes,  or  for  mere  delay,  the  party  whose  exceptions 
are  overruled  shall,  for  every  exception  overruled,  pay 


203 

costs  to  the  other  party,  and  for  every  exception  al- 
lowed shall  be  entitled  to  costs;  the  costs  to  be  fixed 
in  each  case  by  the  court,  by  a  standing  rule  of  the 
Circuit  Court. 

RULE  LXXXV, 

Correction  of  decree. — Clerical  mistakes  in  decrees 
or  decretal  orders,  or  errors  arising  from  any  acci- 
dental slip  or  omission,  may,  at  any  time  before  an 
actual  enrollment  thereof,  be  corrected  by  order  of 
the  court  or  a  judge  thereof,  upon  petition,  without 
the  form  or  expense  of  a  rehearing. 

EULE   LXXXVI. 

Decree,  form  of. — In  drawing  up  decrees  and  orders, 
neither  the  bill,  nor  answer,  nor  other  pleadings,  nor 
any  part  thereof,  nor  the  report  of  any  master,  nor 
any  other  prior  proceeding,  shall  be  recited  or  stated 
in  the  decree  or  order ;  but  the  decree  and  order  shall 
begin,  in  substance,  as  follows :  ' '  This  cause  came  on 
to  be  heard  (or  to  be  further  heard,  as  the  case  may 
be)  at  this  term,  and  was  argued  by  counsel;  and 
thereupon,  upon  consideration  thereof,  it  was  ordered, 
adjudged  and  decreed  as  follows,  viz.:"  [Here  insert 
the  decree  or  order.] 

EULE   LXXXVII. 

Suits  by  or  against  incompetents. — Guardians  ad 
litem  to  defend  a  suit  may  be  appointed  by  the  court, 
or  by  any  judge  thereof,  for  infants  or  other  persons 
who  are  under  guardianship,  or  otherwise  incapable 
to  sue  for  themselves.  All  infants  and  other  persons 
so  incapable  may  sue  by  their  guardians,  if  any,  or  by 
their  prochein  ami;  subject,  however,  to  such  orders 
as  the  court  may  direct  for  them. 

RULE  LXXXVIII. 

Rehearing. — Every  petition  for  a  rehearing  shall 
contain  the  special  matter  or  cause  on  which  such  re- 
hearing is  applied  for,  shall  be  signed  by  counsel,  and 
the  facts  therein  stated,  if  not  apparent  on  the  record, 


204 

shall  be  verified  by  the  oath  of  the  party  or  by  some 
other  person.  No  rehearing  shall  be  granted  after  the 
term  at  which  the  final  decree  of  the  court  shall  have 
been  entered  and  recorded,  if  an  appeal  lies  to  the 
Supreme  Court.  But  if  no  appeal  lies,  the  petition 
may  be  admitted  at  any  time  before  the  end  of  the  next 
term  of  the  court  in  the  discretion  of  the  court. 

RULE  LXXXIX. 

Rules  by  Circuit  Court. — The  Circuit  Courts  (a  ma- 
jority of  all  the  judges  thereof,  including  the  justice  of 
the  Supreme  Court,  the  circuit  judges  and  the  district 
judge  for  the  district  concurring  therein)  may  make 
any  other  and  further  rules  and  regulations  for  the 
practice,  proceedings,  and  process,  mesne  and  final,  in 
their  respective  districts,  not  inconsistent  with  the 
rules  hereby  prescribed,  in  their  discretion,  and  from 
time  to  time  alter  and  amend  the  same. 

RULE  xc. 

Rules  of  practice. — In  all  cases  where  the  rules  pre- 
scribed by  this  court  or  by  the  Circuit  Court  do  not 
apply,  the  practice  of  the  Circuit  Court  shall  be  regu- 
lated by  the  present  practice  of  the  high  court  of  chan- 
cery in  England,  so  far  as  the  same  may  reasonably 
be  applied  consistently  with  the  local  circumstances 
and  local  conveniences  of  the  district  where  the  court 
is  held,  not  as  positive  rules,  but  as  furnishing  just 
analogies  to  regulate  the  practice. 

RULE  xci. 

Affir^nation. — Whenever,  under  these  rules,  an  oath 
is  or  may  be  required  to  be  taken,  the  party  may,  if 
conscientiously  scrupulous  of  taking  an  oath,  in  lieu 
thereof  make  solemn  affirmation  to  the  truth  of  the 
facts  stated  by  him. 

RULE  XCII. 

Decree  in  foreclosure  cases. — In  suits  in  equity  for 
the  foreclosure  of  mortgages  in  the  Circuit  Court  of 
the  United  States,  or  in  any  court  of  the  Territories 


205 

having  jurisdiction  of  the  same,  a  decree  may  be  ren- 
dered for  any  balance  that  may  be  found  due  to  the 
complainant  over  and  above  the  proceeds  of  the  sale 
or  sales,  and  execution  may  issue  for  the  collection  of 
the  same,  as  is  provided  in  the  eighth  rule  of  this 
court  regulating  the  equity  practice,  where  the  decree 
is  solely  for  the  payment  of  money. 

RULE  XCIII. 

Injunction — On  appeal. — When  an  appeal  from  a 
final  decree,  in  an  equity  suit,  granting  or  dissolving 
an  injunction,  is  allowed  by  a  justice  or  judge  who 
took  part  in  the  decision  of  the  cause,  he  may,  in  his 
discretion,  at  the  time  of  such  allowance,  make  an  or- 
der suspending  or  modifying  the  injunction  during  the 
pendency  of  the  appeal,  upon  such  terms  as  to  bond 
or  otherwise  as  he  may  consider  proper  for  the  se- 
curity of  the  rights  of  the  opposite  party. 

RULE  xciv. 

Bill  by  stockholder. — Every  bill  brought  by  one  or 
more  stockholders  in  a  corporation  against  the  cor- 
poration and  other  parties,  founded  on  rights  which 
may  properly  be  asserted  by  the  corporation,  must  be 
verified  by  oath,  and  must  contain  an  allegation  that 
the  plaintiff  was  a  shareholder  at  the  time  of  the  trans- 
action of  which  he  complains,  or  that  his  share  had 
devolved  on  him  since,  by  operation  of  law,  and  that 
the  suit  is  not  a  collusive  one,  to  confer  on  a  court  of 
the  United  States  jurisdiction  of  a  case  of  which  it 
would  not  otherwise  have  cognizance.  It  must  also  set 
forth  with  particularity  the  efforts  of  the  plaintiff  to 
secure  such  action  as  he  desires  on  the  part  of  the 
managing  directors  or  trustees,  and,  if  necessary,  of 
the  shareholders,  and  the  causes  of  his  failure  to  ob- 
tain such  action. 


CASES  ON  EQUITY  PLEADING  AND  PRACTICE. 


WAUGH  V.  ROBBINS, 

33  111.  182. 

(1864.) 


Walker,  C.  J.  In  this  case  complainant  exhibited 
[*183]  in  the  court  below  this  bill  to  foreclose  a  mort- 
gage, executed  by  James  A.  Waugh  and  Sarah  A. 
Waugh  to  him.  It  alleges  that  the  mortgage  was  exe- 
cuted to  secure  the  payment  of  money  advanced  by 
complainant  for  the  purpose  of  improving  the  mort- 
gaged premises.  *That  at  the  time  [184*]  the  mort- 
gage was  executed  the  mortgagor  had  no  title  to  the 
premises,  but  it  was  expected  the  deed  would  be  made 
to  Sarah  A.  Waugh  alone;  but  on  the  contrary,  the 
property  was  conveyed  to  Sarah  A.  Waugh  and  her 
four  children,  upon  the  terms  that  the  children  owned 
jointly  one-half  of  the  property,  and  Sarah  A.  the 
other  half.  That  complainant  paid  the  entire  con- 
sideration for  the  premises,  which  was,  that  it  should 
be  improved  by  the  erection  of  a  house  thereon,  which 
was  built  with  complainant's  money,  and  the  convey- 
ance was  made  after  the  building  was  erected.  That 
the  grantees  paid  nothing.  He  claims  that  the  prop- 
erty should  be  sold  for  the  satisfaction  of  the  mort- 
gage. 

The  adult  defendants  answer,  and  insist  by  way 
of  plea,  that  they  only  have  a  life  estate  in  the  prem- 
ises, and  had  no  other  or  greater  interest.  They  after- 
wards filed  a  cross-bill  in  which  they  allege  that  they 
are  very  poor,  and  their  children  in  need  of  the  neces- 
saries and  comforts  of  life,  and  their  interests  in  the 
lot  ought  to  be  sold  for  their  support,  to  say  nothing 
of  their  education;  and  that  they  have  no  personal 

(207) 


208 

property ;  and  pray  a  sale  of  their  interest  in  the  prem- 
ises for  their  support.  Complainant  answered,  ad- 
mitting the  allegations  of  the  cross-bill.  The  guardian 
ad  litem  for  the  minor  defendants  answered,  that  he 
was  uninformed  of  the  truth  of  the  allegations  of  the 
bill,  and  required  strict  proof.  On  the  hearing,  the 
court  decreed  a  foreclosure  and  sale  of  the  proi:)erty, 
also  that  the  conveyance  to  Sarah  A.  Waugh  and  her 
children  was  in  fraud  of  complainant's  rights,  and 
that  the  minor  defendants  take  nothing  by  the  con- 
veyance, as  against  complainant.  That  the  money 
arising  from  the  sale  should  be  applied  to  the  pay- 
ment of  the  mortgage  debt,  and  if  any  surplus,  that 
it  be  paid  to  Sarah  A.  Waugh  for  her  benefit  and  that 
of  her  children. 

There  is  no  evidence  in  this  record  to  establish  the 
finding  of  the  court  that  this  deed  was  in  fraud  of  the 
rights  of  the  mortgagee.  Nor  does  the  bill  allege  that 
it  was  in  fraud  of  his  rights.  It  does  allege  that  when 
he  advanced  the  money  and  took  the  mortgage,  it  was 
with  the  expectation  that  the  property  would  be  con- 
veyed to  the  mortgagors;  and  that  it  [*185]  was 
*done  in  the  mode  described,  contrary  to  his  expecta- 
tions. He  does  not  allege  such  was  the  agreement,  or 
that  it  was  so  understood.  It  has  been  so  frequently 
held  by  this  court  that  the  evidence  upon  which  a  de- 
cree is  based  must  be  in  some  manner  preserved  in 
the  record,  that  it  is  unnecessary  to  refer  to  cases. 
This  is  especially  true  in  reference  to  decrees  against 
minors.  Where  minors  are  defendants  to  a  bill,  a 
decree  can  only  be  rendered  against  them  on  full  proof. 
Nor  can  their  natural  or  legal  guardians  by  consent 
waive  this  requirement.  This  decree  operates  to  de- 
prive them  of  their  property,  and  yet  no  evidence  is 
found  in  the  record,  even  if  the  allegations  of  the  bill 
were  sufficient,  to  authorize  such  a  decree.  For  these 
reasons  the  decree  of  the  court  below  is  reversed  and 
the  cause  remanded,  with  leave  to  amend  the  bill. 

Decree  reversed. 


209 

CAMPBELL  V.  POWERS, 

139  111.  128. 

(1891.) 

Shope^  J.  The  first  point  made  by  the  counsel  is 
that  the  demurrer  was  improperly  sustained.  Every 
bill  must  contain  sufficient  matters  of  fact  per  se  to 
maintain  the  case,  so  that  the  same  may  be  put  in 
issue  by  the  answer,  and  established  by  proofs.  Har- 
rison V.  Nixon,  9  Pet.  502 ;  Boone  v.  Chiles,  10  Pet. 
177.  Appellant,  by  his  bill,  asks  that  appellee  be  re- 
quired to  unconditionally  convey  to  him  a  half  inter- 
est in  the  leasehold  alleged  to  have  been  purchased  of 
Cooper.  Every  claim  to  equitable  relief  necessarily 
rests  on  an  existing  right,  not  only  in  respect  of  the 
matter  demanded  to  be  done,  but  also  to  immediately 
demand  it  of  the  defendant.  If  for  any  reason  founded 
on  the  substance  of  the  case,  as  stated  in  the  bill,  ad- 
mitted it  to  be  true,  the  complainant  is  not  entitled  to 
the  relief  sought,  the  defendant  may  properly  demur. 
Story,  Eq.  PI.  §  526.  A  very  brief  analysis  of  the  bill, 
keeping  in  view  that  the  intendments  are  against  the 
pleader,  will  show  that  the  bill  wholly  fails  to  state  a 
case  entitling  him  to  the  relief  prayed  or  to  any  other 
relief.  By  reference  to  the  resume  of  the  bill  hereto- 
fore given  it  will  be  seen  that  only  a  single  date  is 
given  to  any  of  these  transactions,  that  being  March 
1,  1889,  when,  it  is  alleged,  the  original  contract  be- 
tween these  parties  was  made.  It  is  alleged  they  pro- 
cured an  option  from  Cooper  to  purchase  his  lease; 
but  when  it  was  procured,  for  how  long  a  time  the 
option  continued,  or  when  it  expired,  are  left  wholly 
to  conjecture.  It  is  alleged  also  that  appellee  pur- 
chased of  Cooper  in  his  own  name;  but  as  to  when, 
whether  during  the  life-time  of  the  option  or  after  its 
termination,  when  all  rights  thereunder  had  ceased, 
there  is  no  information  afforded  by  any  allegation  of 
the  bill.  Eleven  months  had  elapsed,  substantially, 
between  the  making  of  the  alleged  contract  by  the  ap- 
pellant with  appellee  and  the  filing  of  this  bill,  and. 


210 

for  aught  that  is  stated  in  the  bill,  all  right  under  the 
option  given  by  Cooper  had  ceased  many  months  be- 
fore the  purchase  by  appellee.  Again  it  would  seem 
from  the  allegations  of  the  bill  that  the  original  agree- 
ment between  these  parties  contemplated  a  loan,  se- 
cured by  mortgage  of  the  estate,  to  pay  the  purchase 
price  of  the  leasehold  estate,  as  well  as  to  erect  build- 
ings thereon.  The  allegations  of  the  bill  show  that  the 
parties  were  negotiating  "for  a  loan  of  money  suf- 
ficient to  erect  a  building"  simply.  How  the  large 
sum  of  money  required  to  pay  for  the  leasehold  es- 
tate was  to  be  raised,  or  how  it  was  in  fact  raised,  if 
at  all,  is  not  shown.  Moreover,  if  it  be  conceded  that 
the  lease  was  to  be  paid  for  out  of  a  loan  raised  on  the 
leasehold  i)roperty,  and  that  it  was  the  dut}^  of  the  ap- 
pellee, under  the  alleged  trust,  to  make  the  same  for 
the  joint  benefit  of  himself  and  appellant  during  the 
continuance  of  the  option,  there  is  not  the  slightest 
intimation  that  he  did,  or  could,  by  the  exercise  of 
due  diligence  and  skill,  make  such  a  loan,  and  thereby 
perform  the  alleged  trust.  Nothing  was  paid  Coojier 
for  the  alleged  option,  nor  was  there  an  assumption 
by  the  parties  of  the  liability  of  Cooper  under  the 
covenants  of  said  lease.  Appellant  did  nothing  be- 
yond emplo3"ing  an  architect  to  prepare  plans  of  a 
building,  and  neither  by  his  bill  nor  otherwise  otfers 
to  do  anything.  No  tender  is  made  in  the  bill  or  other- 
wise of  any  part  of  the  purchase  price  of  the  lease- 
hold estate,  and  there  is  no  statement  that  he  ever 
offered  to  contribute  anything  towards  the  purchase. 
If  appellee  was  compelled  to  advance  the  entire  cost 
of  the  purchase  from  Cooper  before  appellant  would 
be  equitably  entitled  to  the  relief  prayed  for,  he  must 
reimburse  appellee  a  pro  rata  share  of  the  money  ex- 
pended, even  though  the  purchase  was  under  the  op- 
tion ;  and  this,  being  a  condition  to  his  right  to  equita- 
ble relief,  must  be  offered  in  his  bill.  On  the  other 
hand,  if  it  be  assumed,  as  may  be  done  consistently 
with  the  material  allegations  of  the  bill,  that  the 
"specified  time"  for  which  the  option  had  been  given 
had  elapsed,  and  the  joint  enterprise  been  abandoned; 


1 


211 

tliat  appellee  purchased  the  lease  in  good  faith  for 
himself — there  is  nothing  alleged  that  would  charge 
him  with  a  trust  in  favor  of  appellant,  or  render  him 
a  trustee  ex  maleficio  in  respect  of  said  estate.  We 
are  of  the  opinion  that  the  demurrer  was  properly 
sustained. 

It  is  next  insisted  that  the  court  erred  in  overuling 
appellant's  motion  for  leave  to  amend.  It  may  be 
conceded  that  the  showing  was  sufficient  to  excuse  ap- 
pellant for  not  having  made  his  amendment  under  the 
leave  given,  and  for  not  applying  for  additional  leave 
at  an  earlier  date.  The  application  was  then  ad- 
dressed to  the  sound  discretion  of  the  chancellor,  to 
be  exercised  for  the  furtherance  of  justice.  It  ap- 
pears, however,  from  the  certificate  of  the  judge  that 
he  denied  the  leave  upon  the  ground  that  the  order 
sustaining  the  demurrer  and  granting  leave  to  amend 
was  a  final  order,  which  the  court  at  a  subsequent  term 
could  not  modify,  and  held  that,  complainant  having 
failed  to  amend  his  bill  according  to  said  order,  the 
court  was  without  jurisdiction  or  power  to  then  grant 
said  leave.  We  concur  with  the  Appellate  Court  that 
the  chancellor  was  in  error  in  so  holding.  The  case 
was  still  pending  in  the  Superior  Court.  Knapp  v. 
Marshall,  26  111.  63.  The  order  entered  was  in  inter- 
locutory, and  the  court  had  power  and  jurisdiction  to 
make  such  further  order  in  the  cause  as  justice  might 
require.  Hayes  v.  Caldwell,  5  Gilman,  33;  Gage  v. 
Rohrbach,  56  111.  262;  March  v.  Mayers,  85  111.  177; 
Lodge  v.  Klein,  115  111.  177,  3  N.  E.  Rep.  272. 

It  is  insisted  with  great  earnestness  that,  the  Su- 
perior Court  having  placed  its  refusal  to  grant  leave 
to  amend  upon  erroneous  grounds,  and  not  having 
considered  whether  its  discretion  should  be  exercised 
to  permit  the  amendment,  the  case  must  be  reversed 
and  remanded,  to  the  end  that  the  chancellor  may  exer- 
cise such  discretion  in  passing  upon  the  granting  of 
leave  to  amend,  and  that,  therefore,  the  Appellate 
Court  erred  in  exercising  a  discretion  committed  to 
the  chancellor  alone,  and  in  refusing  to  reverse  and 
remand.     This  is  manifestlv  erroneous.     The  entire 


212 

showing  made  to  the  chancellor  is  in  the  recorcj,  and 
if  for  any  reason  the  discretion  should  not  have  been 
exercised,  or  the  leave  should  have  been  denied,  the 
action  of  the  Superior  Court  in  refusing  the  leave 
was  properly  affirmed.  It  is  of  the  judgment  of  the 
court  appellant  is  permitted  to  complain,  and  not  of 
the  grounds  or  reasons  upon  which  the  court  founded 
its  decision.  In  chancery,  amendments  are  allowed 
generally  with  great  liberality  in  furtherance  of  jus- 
tice, and  at  any  stage  of  the  proceeding.  However,  in 
respect  of  sworn  bills  greater  caution  is  exercised.  1 
Daniell,  Ch.  Pr.  402,  note  1.  It  was  said  by  this  court 
in  Gregg  v.  Brower,  67  111.  529,  that  when  the  object 
of  the  amendment  was  to  let  in  new  facts  there  is 
greater  reluctance  to  allow  the  amendment  when  it  de- 
pends upon  extrinsic  proof  than  when  it  rests  upon 
documentary  evidence,  "and  if  the  fact  was  known  to 
the  complainant  at  the  time  of  filing  his  bill,  such 
amendment  will  not  be  allowed  unless  some  excuse  is 
given  for  the  omission."    Citing  Calloway  v.  Dobson, 

1  Brock  119;  Whitemarsh  v.  Campbell,  2  Paige,  67; 
Prescott  V.  Hubbell,  1  Hill.  Eq.  217;  Coal  Co.  v.  Dyett, 

2  Edw.  Ch.  115.  In  the  subsequent  case  of  Jones  v. 
Kennicott,  83  111.  484,  which  was  a  bill  for  ne  exeat, 
and  required  to  be  verified  by  the  oath  of  the  party, 
this  court,  in  passing  upon  the  right  of  complainant 
to  amend  his  bill  after  demurrer  sustained,  said: 
"The  party  asking  leave  to  amend  should  present  and 
submit  in  writing  the  amendment  proposed  to  be  made, 
supported  by  an  affidavit  of  its  truth,  and  some  expla- 
nation of  the  reason  why  the  matter  proposed  to  be 
added  was  not  originally  inserted."  The  bill  in  this 
case  prayed  for  the  issuance  of  a  writ  of  injunction 
restraining  appellee  from  mortgaging,  incumbering, 
or  otherwise  disposing  of  the  leasehold  estate  men- 
tioned, and  was  properly  verified  by  the  affidavit  of 
complainant.  It  was  sworn  to  that  it  might  be  used 
in  procuring  an  injunction,  as  well  as  evidence,  upon 
subsequent  motion  to  dissolve  the  same.  It  would 
have  been  entirely  competent  for  complainant  at  any 
time   to   have   moved   for   a   preliminary   injunction. 


213 

That  he  did  not  do  so  does  not  affect  the  nature  or 
character  of  his  bill.  The  motion  for  leave  to  amend 
was  not  accompanied  by  any  amendment.  No  sugges- 
tion in  writing  or  otherwise  was  made  of  the  nature 
or  character  of  the  amendment  proposed,  or  affidavit 
showing  that  any  additional  material  matter  existed 
or  could  be  alleged,  or  accounting  for  its  omission. 
Under  the  rule  relating  to  amendment  of  sworn  bills, 
the  motion  was  properly  denied. 

But  if  it  be  conceded,  as  contended,  that  the  bill  is 
to  be  treated  as  an  unsworn  bill,  the  appellant  is  in 
no  better  position.  The  rule  undoubtedly  is  that  if 
the  bill  is  not  required  by  law  to  be  sworn  to,  (and 
the  fact  of  it  being  a  sworn  bill  performs  no  office  or 
effects  no  change  from  what  it  would  be  as  an  unsworn 
bill,)  the  verification  of  it  by  oath  of  the  party  will  be 
disregarded,  (Gordon  v.  Reynolds,  114  111.  132;  Dow- 
ney V.  O'Donnell,  92  111.  561,)  and  amendments  al- 
lowed, as  if  it  was  not  sworn  to.  The  usual  practice 
upon  sustaining  a  demurrer  to  a  bill  of  this  character 
is  to  allow  amendments  as  a  matter  of  course,  upon 
such  terms,  as  the  court  may  deem  proper,  (chapter 
22,  §  37,  Rev.  St.,)  and  within  such  reasonable  time 
as  may  be  fixed  by  the  court,  as  was  done  in  this  case. 
Here  the  appellant  failed  to  make  his  amendment 
within  the  time  prescribed,  and  the  dismissal  of  the 
bill  would  follow  as  a  matter  of  course.  The  applica- 
tion was  for  the  affirmative  exercise  of  the  discretion 
of  the  chancellor  in  appellant's  behalf.  He  sufficiently 
accounted,  as  he  must,  for  his  own  want  of  diligence, 
and  so  far  met  with  the  demands  upon  him.  But  more 
was  required.  The  discretion  could  be  exercised  only 
in  furtherance  of  justice.  Its  exercise  was  warranted 
only  when  necessary,  or  apparently  necessary,  to  pre- 
vent the  consummation  of  wrong,  and  promote  and 
further  justice.  Parties  litigant  have  a  right  to  in- 
sist that  litigation  shall  not  be  unnecessarily  pro- 
longed, and,  unless  there  was  some  meritorious  rea- 
son for  further  delay,  the  defendant  might  rightfully 
demand  the  dismissal  of  the  bill,  and  thus  end  vex- 
atious   litigation.      As    before    indicated,    appellant 


214 

wholly  failed  to  show,  not  only  what  amendment  he 
desired  to  make,  but  that  any  amendment  could  in  fact 
be  made  to  the  bill  which  would  obviate  the  objection 
to  it  in  matter  of  substance.  It  would  seem  too  plain 
for  argument  that,  before  a  chancellor  could  say  an 
amendment  should  be  allowed  as  in  furtherance  of 
justice,  he  must  be  apprised  of  the  nature  of  the 
amendment  to  be  made.  For  aught  that  appeared,  the 
amendments  proposed  may  have  been  of  the  most 
frivolous  character,  calculated  to  harass  and  annoy  the 
defendant  by  prolonging  the  litigation  and  increasing 
the  expense.  In  such  a  case  no  one  would  contend 
that  the  amendment  should  be  allowed.  There  is  no 
hardship  in  requiring  a  party  who  is  in  default,  and 
invoking  the  discretion  of  the  court,  to  present  with 
his  application  for  leave  the  amendments  proposed 
to  be  made,  or  otherwise  apprising  the  court  of  what 
they  are,  so  that  the  court  may  intelligently  determine 
the  propriety  of  allowing  or  disallowing  them.  There 
was  nothing  here  shown  upon  which  the  court  could 
properly  exercise  a  discretion  to  allow  amendments 
to  the  bill,  and  the  order  of  the  court  was  therefore 
proper.  Upon  the  disallowance  of  the  motion  for  leave 
to  amend,  the  order  of  the  dismissal  properly  fol- 
lowed, and  its  affirmance  by  the  Appellate  Court  was 
right.  Other  errors  are  assigned,  but  all  of  the  points 
made  requiring  consideration  are  met  by  the  fore- 
going. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 


PRIMMER  V.  PATTEN, 

32  111.   528. 
(1863.) 

[530*]  Walker,  J.  The  first  question  which  we  pro- 
pose to  consider  is,  whether  the  bill  of  discovery 
contained  such  allegations  as  required  the  court  be- 
low to  grant  an  injunction  staying  the  proceedings  at 
law  until  the  discovery  was  had.  The  bill  alleges  the 
pendency  of  the  suit;  [531*]  that  pleas  had  been  filed, 


215 

setting  up  a  failure  of  *consideration,  with  notice  by 
the  plaintiffs  at  the  tmie  they  purchased  the  note; 
that  they  purchased  the  note  after  its  maturity;  also 
a  plea  that  the  payee  of  the  note  received  the  con- 
veyance of  a  town  lot  in  satisfaction  and  discharge  of 
the  note  by  a  written  release,  and  that  plaintiffs  had 
notice  at  the  time  they  purchased;  that  replications 
were  filed  and  issues  joined.  The  bill  further  alleges 
that  complainant  was  informed  and  believed  that  the 
note  was  indorsed  after  it  became  due  and  payable, 
and  that  plaintiffs  knew  of  all  the  facts  set  up  in  the 
pleas  when  they  purchased  the  note  upon  which  the 
suit  had  been  instituted.  That  Lasater,  the  payee  of 
the  note  informed  plaintiffs  that  the  consideration  had 
failed. 

It  will  be  observed  that  the  bill  fails  to  allege  that 
the  averments  in  the  pleas,  or  that  the  information 
given  by  the  payee  of  the  note  to  the  assignees,  was 
true.  Nor  does  the  bill,  outside  the  averments  in  the 
pleas,  allege  facts  showing  a  failure  of  the  considera- 
tion for  which  the  note  was  executed.  Neither  does 
it  allege  that  complainant  expected  or  believed  that 
he  could  prove  by  defendants,  that  Lasater  informed 
them  at  the  time  he  indorsed  the  note,  that  the  con- 
sideration had  failed.  The  bill  should  have  alleged 
that  the  facts  averred  in  the  pleas,  or  such  of  them 
as  showed  a  defense,  or  other  sufficient  facts,  were 
true.  It  is  likewise  defective  in  failing  to  allege  that 
he  expected  to  establish  their  truth  by  the  discovery 
sought  by  the  bill.  It  is  true  that  he  says  in  his  bill, 
that  he  has  no  witness  by  whom  he  can  prove  the  facts 
set  up  in  the  pleas,  except  by  Lasater  or  the  plaint- 
iffs in  the  suit  at  law,  but  he  fails  to  allege  that  he 
can  prove  them  by  these  parties.  It  may  possibly  be 
inferred  that  he  expects  to  prove  them  by  the  defend- 
ants to  the  bill,  but  there  is  no  such  positive  allega- 
tion. This  fails  to  conform  to  the  rules  of  pleading. 
In  chancery,  as  at  law,  all  facts  must  be  clearly  and 
positively  averred  in  pleading. 

Again,  the  bill  is  defective  in  its  frame,  as  it  con- 
tains no  prayer  for  an  injunction.    It  has  a  prayer  for 


216 

discovery  and  for  a  summons  to  the  next  term  of  the 
court,  but  it  does  not  ask  that  the  suit  at  law  may 
be  stayed  until  the  coming  in  of  the  answer.  On  this 
bill,  as  it  was  framed,  the  court  below  would 
*have  erred  in  granting  an  injunction.  No  er-  [532*] 
ror  is  perceived  in  this  record,  and  the  judg- 
ment of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


ANGELO    ET    AL.    v.    ANGELO    ET    AL. 
146  111.  629. 
(1893.) 

Wilkin,  J.  This  is  an  appeal  from  a  decree  of  the 
court  below  on  the  bill  of  appellees  against  appellants, 
setting  aside  a  tax  deed,  and  ordering  certain  lands 
sold  for  the  payment  of  rent  found  to  be  due  from 
William  II.  Angelo  to  Charlotte  Aldridge.  It  appears 
from  the  pleadings  in  the  ease  that  certain  real  estate 
was  conveyed  in  September,  1871,  to  the  complainant, 
Oscar  N.  Angelo,  in  fee,  subject  to  a  life  estate  in  his 
parents,  William  H.  Angelo  and  Charlotte  Angelo, 
now  Charlotte  Aldridge,  as  tenants  in  common.  These 
life  tenants  entered  into  possession  of  the  land,  and 
William  H.  continued  to  occupy  the  same  to  the  bring- 
ing of  this  suit.  Charlotte  separated  from  her  hus- 
band, obtained  a  divorce,  and  intermarried  with  one 
Aldridge,  and  has  not  occupied  any  part  of  the  prem- 
ises for  several  years.  Taxes  assessed  against  the 
land  remained  unpaid,  for  which  it  was  sold  in  May, 
1889,  and  purchased  by  the  defendant  Mary  Stewart, 
who,  in  due  course  of  time,  took  a  tax  deed  for  the 
same.  The  bill  seeks  to  set  aside  that  deed,  alleging 
for  cause  that  it  was  obtained  through  collusion  and 
fraud  of  Mary  Stewart  and  William  H.  Angelo.  It 
appears  that  in  June,  1890,  Charlotte  Aldridge,  on  a 
bill  by  her  against  William  H.,  obtained  a  decree  for 
$846.48,  for  the  use  of  her  part  of  the  common  prop- 
erty. The  present  bill  was  filed  August  5,  1891,  and 
seeks  to  recover  not  only  rents  due  since  that  time, 


217 

but  also  the  amount  of  the  former  decree,  and  prays 
that  the  interest  of  WilUam  H.  be  sold  for  the  pur- 
pose of  paying  the  same.  The  defendants  answered 
separately,  each  denymg  that  there  was  any  collusion 
or  fraud  on  their  part  in  regard  to  the  sale  of  the  lands 
for  taxes,  or  in  obtaining  the  tax  deed  by  Mary  Stew- 
art. William  H.  further  denied  that  the  complainant 
Charlotte  was  entitled  to  recover  from  him  any  rents 
or  profits  of  the  land.  He  also  set  up  against  the 
prayer  for  a  sale  of  the  premises  a  homestead  right 
in  his  interest.  On  the  twelfth  of  October,  1892,  a 
decree  was  rendered,  reciting  that  said  tax  deed  "was 
and  is  void  because  of  defects  in  the  notice  of  the  sale 
for  taxes,  and  the  same  is  therefore  annulled  and  set 
aside  as  a  cloud  upon  the  title  to  said  land,  but  *  *  * 
that  in  equity  the  said  Mary  Stew^art  is  entitled  to 
have  her  money  so  advanced  repaid  to  her  out  of  the 
proceeds  of  the  sale  of  said  land,"  etc.  It  also  con- 
firmed the  decree  of  June,  1890,  and  decreed  that  the 
defendant  William  H.  should  pay  the  complainant 
Charlotte  an  additional  amount  of  $175,  as  rent,  making 
in  all  the  sum  of  $1,021.48,  and  ordered  the  ]n'emises 
sold  for  the  payment  thereof,  the  sale  to  be  free  from 
any  claim  of  homestead  by  William  H.  It  is  insisted 
that  the  decree  is  erroneous  on  both  branches  of  the 
case. 

Clearly,  the  order  setting  aside  the  tax  deed  cannot 
be  upheld,  for  the  reason  that  it  is  based  upon  a  ground 
entirely  foreign  to  the  issues  in  the  case.  There  is  no 
allegation  in  the  bill  that  the  notice  of  the  tax  sale 
was  defective.  The  sole  and  only  ground  upon  which 
it  seeks  to  avoid  the  sale  and  deed  is  the  misconduct, 
fraud  and  collusion  of  William  H.  Angelo  and  Mary 
Stewart,  in  whose  name  the  deed  was  taken.  The  de- 
cree, in  effect,  finds  that  issue  for  the  defendants,  but 
then  goes  entirely  outside  the  bill,  and  sets  the  deed 
aside  because  of  defects  in  the  notice.  This  was  clearly 
error  without  reference  to  the  proofs.  The  rule  that 
proofs  without  corresponding  allegations  are  in  equity 
as  unavailing  as  allegations  without  proofs,  is  familiar 
to  every  lawyer. 


218 

On  the  other  branch  of  the  case  the  bill  is  fatally 
defective,  and  the  demurrer  filed  to  it  should  have 
been  sustained.  It  is  a  bill  by  one  tenant  in  common 
against  another  to  recover  rents  and  profits,  or  to 
recover  for  use  and  occupation.  It  does  not  attempt 
to  show  that  the  defendant  received  rents  and  profits 
from  a  third  person;  that  he  rented  the  land,  or  any 
part  of  it;  or  even  what  the  rental  value  of  it  was 
during  the  time  charged  for.  No  attempt  whatever 
is  made  by  it  to  show  that  the  defendant  refused  to 
allow  the  complainant  to  occupy  the  premises,  or  to 
control  her  interest  in  the  same,  or  that  she  made  any 
effort  or  attempt  to  do  so.  It  does  no  more  than  to 
aver  that  the  defendant  occupied  the  common  prop- 
erty, and  the  complainant  did  not.  No  facts  are  alleged 
upon  which  to  base  the  prayer  for  a  sale  of  the  interest 
of  the  defendant,  even  if  the  bill  were  otherwise  suffi- 
cient; neither  is  it  in  any  way  shown  that  this  bill  is 
necessary  to  enforce  the  collection  of  the  former  de- 
cree. In  short,  the  bill  shows  on  its  face  that  it  was 
filed  without  any  regard  to  well-established  rules  of 
law  governing  the  rights  of  co-tenants.  At  the  com- 
mon law  one  tenant  in  common  could  not  be  compelled 
to  account  to  another  for  rents  and  profits,  to  remedy 
which  hardship  the  Statute  of  4  Anne,  chap.  16,  was 
enacted.  Freem.  Co-tenancy,  §  270.  To  the  same 
effect  is  our  statute  (§1,  chap.  2,  p.  187,  1  Starr  & 
C.  St.)  The  remedy  is  by  action  to  compel  an  account- 
ing, now  almost,  if  not  universally,  pursued  by  bill 
in  equity,  and  expressly  authorized  by  the  eighteenth 
section  of  the  chapter  or  our  statute  above  referred 
to.  The  liability  of  one  co-tenant  to  account  to  an- 
other may  arise  either  from  receiving  from  a  third 
party  more  than  his  share  of  the  rents  and  profits,  or 
from  his  appropriating  to  his  own  use  more  than  his 
proportion  of  the  common  estate.  See  Freem.  Co- 
tenancy, §  272.  It  is  impossible  to  tell  upon  which  of 
these  grounds  the  liability  is  based,  but  it  is  clear  the 
bill  is  insufficient  in  any  view.  Clearly,  it  makes  no 
case  on  the  first  ground,  for  the  reason,  as  already 
stated,  it  wholly  fails  to  show  the  receipt  of  any  rents 


219 

by  William  H.  It  is  equally  defective  on  the  second, 
because  it  does  no  more  than  show  occupancy  by  the 
defendant,  and  forbearance  to  occupy  by  complainant. 
Chapin  v.  Foss,  75  111.  280;  Boley  v.  Barutio,  120  111. 
192,  11  N.  E.  Rep.  393,  and  cases  cited.  Moreover,  no 
attempt  is  made  to  state  the  rental  value  of  the  land. 
Again,  there  is  no  such  thing  known  to  the  law  as  a 
lien,  in  the  first  instance,  in  favor  of  the  complaining 
tenant,  against  the  interest  of  the  other,  for  rents  and 
profits.  Stenger  v.  Edwards,  70  111.  631.  But  it  is 
useless  to  pursue  this  inquiry.  No  one  can  seriously 
contend  that  an  account  could  be  stated  between  these 
parties  on  this  bill  if  every  fact  stated  in  it  were  ad- 
mitted to  be  true.  The  case  is  very  meagerly  pre- 
sented by  the  abstract,  and  the  argument  on  behalf  of 
appellant  on  this  branch  of  the  record  is  confined  to  a 
discussion  of  the  homestead  rights  of  William  H.  An- 
gelo,  as  against  the  decree  of  sale.  In  our  opinion, 
that  question  it  not  reached,  for  the  reason  that  no 
right  of  action  is  shown  by  the  bill,  and,  if  there  had 
been,  a  peremptory  decree  for  the  sale  of  the  land 
would  have  been  erroneous. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded. 


WHITE  V.  MORRISON, 

11  in.  361. 

(1849.) 

Treat,  C.  J.  This  decree  can  not  be  affirmed.  The 
case  shows  a  clear  right  in  the  complainant  to  a  fore- 
closure of  his  mortgage,  unless  the  defendant  Butler, 
made  full  proof  of  his  defense.  He  alleges  in  his  an- 
swer, that  he  had  acquired  the  legal  title  to  the  mort- 
gage premises,  by  virtue  of  a  sale  and  sheriff's  deed, 
founded  on  a  judgment  recovered  against  the  mort- 
gagor l)efore  the  execution  of  the  mortgage.  The 
sheriff's  deed,  although  referred  to  as  an  exhibit  in 
the  answer,  does  not  appear  to  have  been  produced 
and  proved.    If  introduced  and  proved  as  an  exhibit, 


220 

on  the  hearing,  it  would  have  been  filed  with  the  pa- 
pers of  the  case  and  copied  into  the  transcript  sent 
to  this  court.  Holdridge  v.  Bailey,  4  Scammon,  124. 
But  it  is  contended  that  the  existence  of  the  judgment 
and  the  proceedings  under  it,  is  admitted  by  the  bill. 
Such  is  not  the  fact.  The  bill  states  that  the  defend- 
ant, Butler,  pretends  that  he  has  purchased  the  prem- 
ises, under  a  judgment  older  than  the  mortgage, 
[*365]  and  then  charges  *that  it  would  be  inequitable 
in  him  to  set  up  the  purchase  to  defeat  the 
mortgage,  inasmuch  as  he  had  agreed  to  pay  off  the 
mortgage.  This  statement  does  not  dispense  with 
proof  of  the  allegations  of  the  answer.  It  is  not  an 
admission  that  there  was  such  a  judgment,  or  that 
such  proceedings  were  had  under  it.  The  bill  antici- 
pates a  particular  defense,  without  conceding  it  to  be 
true.  We  are  asked,  however,  to  presume  that  proof 
of  the  defense  was  made  orally  at  the  hearing,  under 
the  provisions  of  the  act  of  the  12th  of  February, 
1849,  which  declares  "that  thereafter,  on  the  trial 
of  any  suit  in  chancery,  the  evidence  on  the  part  of 
either  plaintiff  or  defendant  may  be  given  orally,  un- 
der the  same  rules  and  regulations  as  evidence  in 
cases  at  common  law;  provided,  however,  that  deposi- 
tions taken  in  pursuance  of  law  may  still  be  read  in 
evidence,  as  if  this  act  had  not  been  passed."  Acts 
of  1849,  page  133.  Previous  to  the  passage  of  this 
act,  the  testimony  in  contested  chancery  cases,  was 
taken  down  in  writing  in  the  form  of  depositions,  ex- 
cept where  the  witnesses  were  examined  orally  before 
a  master,  and  the  facts  proved  by  them  reported  to 
the  court,  and  when  the  proof  of  exhibits  was  made 
viva  voce  at  the  hearing.  And  the  depositions,  the  mas- 
ter's report,  and  the  exhibits  were  filed,  and  made  part 
of  the  record  of  the  case.  M'Clay  v.  Norris,  4  Gil- 
man,  370.  We  are  of  the  opinion  that  this  act  was 
only  designed  to  change  the  mode  of  taking  testimony, 
and  not  to  dispense  with  the  necessity  of  the  testi- 
mony appearing  in  the  record.  The  parties  are  per- 
mitted to  produce  their  witnesses  in  open  court,  and 
have  them  examined  orally.    The  object  was  to  avoid 


221 

the  inconvenience,  expense  and  delay  attending  the 
preparation  of  a  case  for  hearing,  where  the  evidence 
must  be  taken  by  depositions.  When  this  statute  is 
acted  on,  tlie  testimony  of  the  witnesses,  or  the  facts 
proved  by  them,  ought  still  to  appear  in  the  record. 
It  may  be  stated  in  the  decree ;  in  a  bill  of  exceptions ; 
in  a  certificate  of  the  judge,  or  in  a  master's  report. 
We  conceive  it  to  be  the  duty  of  the  Circuit  Court  to 
see  that  the  testimony  is  incorporated  in  the  record, 
in  some  one  of  these  ways.  This  court  will  not  pre- 
sume that  any  other  proof  was  made  than  what  is 
thus  stated  in  the  record.  In  this  case,  the  decree 
recites  that  the  cause  was  heard  on  the  bill,  answer, 
replication,  exhibits  and  depositions.  The  rec- 
ord fails  to  show  that  *any  proof  was  made  of  [*366] 
the  sheriff's  deed.  The  exhibits  referred  to  in 
the  decree  must  be  understood  as  including  only  those 
appearing  in  the  record.  For  this  defect  in  the  proof 
of  the  defendant,  the  decree  must  be  reversed.  In- 
stead of  a  decree  being  entered  in  this  court,  the 
cause  will  be  remanded,  that  the  parties  may  have  an 
opportunity  to  present  the  whole  case  on  the  merits. 
It  may  not  be  improper  to  make  some  further  sug- 
gestions respecting  the  case.  It  was  insisted  on  the 
argument  that  the  complainant  was  entitled  to  a  de- 
cree of  foreclosure,  even  if  the  allegations  of  the  an- 
swer were  true,  inasmuch  as  he  proved  that  the  pur- 
chase under  the  judgment  was  made  with  the  money 
of  the  mortgagor.  If  such  was  the  fact,  Butler  can 
not  assert  title  under  the  sheriff's  deed,  to  the  prej- 
udice of  the  mortgage,  because,  in  equity,  it  was  the 
purchase  of  the  mortgagor,  and  inured  to  the  benefit 
of  the  mortgagee.  But  the  complainant  has  not  made 
a  case  by  his  bill,  that  will  authorize  him  to  defeat 
the  purchase  on  this  ground.  He  seeks  to  avoid  the 
purchase  on  the  ground  that  Butler  was  personally 
liable  for  the  payment  of  the  mortgage.  He  can  not 
allege  one  cause  for  relief  against  the  purchaser,  and 
make  out  his  case  by  proof  of  a  different  one.  His 
proof  must  correspond  with  the  allegations  he  has 
made,  and  not  be  inconsistent  therewith.     He  must 


222  - 

stand  or  fall  with  the  case  made  in  his  bill.  M'Kay 
V.  Bissett,  5  Gilman,  499.  Special  replications  in 
chancery  are  now  disused.  A  general  replication  only 
puts  in  issue  the  truth  and  sufficiency  of  the  matters 
stated  in  the  bill  and  answer.  If  it  is  necessary  for 
a  complainant  to  put  in  issue  any  facts  on  his  part, 
in  avoidance  of  matters  set  up  by  the  defendant,  he 
must  do  it  by  proper  charges  in  his  bill.  He  may,  in 
the  original  bill,  anticipate  the  defense  that  will  be 
made,  and  allege  any  matter  necessary  to  explain  or 
avoid  it;  or,  omitting  all  reference  to  the  defense,  he 
may,  on  the  coming  in  of  the  answer,  introduce  the 
new  matter  into  the  case,  by  an  amendment  to  the 
bill.  Story's  Eq.  PI.,  sec.  878;  Tarlton  v.  Vietes,  1 
Gilman,  470. 

The  decree  of  the  Circuit  Court  will  be  reversed, 
with  costs,  and  the  cause  remanded,  with  leave  to  the 
complainant  to  amend  his  bill. 

Decree  reversed. 


WINSLOW  V.  NOBLE, 

101  111.  194. 

(1882.) 

Mr.  Chief  Justice  Craig  delivered  the  opinion  of 
court. 

This  was  a  bill  in  equity,  brought  by  Thomas  J. 
Noble,  and  Sarah  J.  Noble,  his  wife,  against  Nath- 
aniel N.  Winslow,  and  Sarah  L.  Winslow,  his  wife,  to 
enjoin  them  from  prosecuting  an  action  of  forcible 
detainer,  which  was  then  pending  before  a  justice 
of  the  peace,  to  recover  possession  of  a  certain  tract 
of  land  in  McLean  county,  consisting  of  45  90/100 
acres  which  was  then  occupied  by  the  complainants. 

There  is  no  substantial  dispute  between  the  j^arties 
in  regard  to  the  facts.  Noble,  as  appears,  a  few  years 
ago  owned  160  acres  of  land  in  Piatt  county,  upon 
which  he  had  given  a  certain  trust  deed  to  secure  a 
certain  amount  of  money  which  he  owed  to  one  Wing. 
This  land  he  traded  to  John  E.  Stewart  for  45  acres 


223 

of  land  in  McLean  connty^ —  the  land  in  dispute.  In 
the  trade  Noble  agreed  to  remove  the  mortgage  on 
the  Piatt  eonnty  land,  and  Stewart  reserved  a  ven- 
dor's lien  on  the  45  acres,  to  secure  the, performance 
of  Noble's  agreement.  Noble  moved  on  the  land  in 
McLean  county,  and  thereafter  he  occupied  it  as  a 
homestead.  Noble  failing  to  pay  off  the  mortgage  on 
the  Piatt  county  land,  Stewart,  at  the  request  of 
Noble,  found  a  man  (Daniel  Grow)  who  was  willing 
to  loan  the  money  to  be  used  for  that  purpose,  and 
take  a  mortgage  on  the  45  acres  of  land.  Noble  and 
his  wife  agreed  to  give  a  mortgage  releasing  the  home- 
stead, to  secure  the  money  loaned  by  Daniel  Grow, 
and  a  mortgage  was  prepared,  executed  and  acknowl- 
edged; but  the  acknowledgment  was  defective  in  this, 
it  failed  to  show  that  T.  J.  Noble  acknowledged  the 
release  of  the  homestead.  This  defect  was  not,  how- 
ever, known  by  Grow  or  the  Nobles.  The  money 
loaned  not  having  been  paid  when  due.  Grow,  in 
February,  1878,  filed  a  bill  in  the  McLean  Circuit 
Court  to  foreclose  the  mortgage.  The  Nobles  did  not 
appear.  A  decree  by  default  was  rendered,  and  in 
May,  1878,  the  premises  were  sold,  and  bid  off  by 
Grow  for  the  amount  of  his  debt,  and  costs.  In  July, 
1879,  Noble,  finding  that  he  could  not  redeem  the 
premises  from  the  sale,  went  to  appellant  N.  N  Win- 
slow,  and  induced  him  to  buy  the  place  at  $50  per 
acre,  which  amounted  to  the  sum  of  $2,250.  There 
was  then  due  Grow  $2,000,  but  he  agreed  to  throw  off 
$150.  Winslow  then  paid  him  $1,850,  and  took  an 
assignment  of  the  certificate  of  purchase,  and  ac- 
counted to  Noble  for  the  balance  of  the  purchase  price 
of  the  land— $400.  Winslow  had  a  deed  made  to  his 
wife  on  the  certificate  of  purchase,  and  as  a  part  of 
the  trade  leased  the  premises  to  Noble  from  the  1st 
day  of  July,  1879,  to  the  1st  day  of  March,  1880,  for 
eight  per  cent,  on  the  amount  he  had  paid  for  the 
property,  and  a  written  lease  was  executed  by  the  par- 
ties. Before  the  expiration  of  the  lease  Noble  dis- 
covered the  defect  in  the  acknowledgment  of  the 
mortgage,  and  refused  to  surrender  possession  of  the 


224 

premises,  and  upon  being  sued  for  possession  filed 
this  bill. 

There  is  no  controversy  over  the  proposition  that  a 
homestead  is  not  exempt  as  against  a  debt  incurred 
for  the  purchase  thereof.  But  the  money  Grow  loaned 
Noble,  for  which  a  mortgage  was  taken,  was  not  used 
in  the  purchase  of  the  premises — it  was  in  no  sense 
purchase  money.  The  fact  that  Noble  may  have  used 
the  money  borrowed  of  Grow  to  pay  ot¥  a  mortgage 
on  the  Piatt  county  farm,  which  he  agreed  with  Stew- 
art to  pay,  as  a  part  of  the  trade  under  which  he 
obtained  the  land  in  question,  does  not  make  the 
money  obtained  of  Grow  purchase  money.  Stewart 
sold  the  premises  to  Noble,  but  he  received  no  part 
of  the  money  Grow  loaned  Noble.  The  premises  were 
purchased  long  before  the  Grow  debt  was  made,  and 
hence  the  Grow  debt  could  not  be  incurred  for  the 
purchase  of  the  premises. 

Appellant  Winslow  filed  a  cross-bill,  in  which  it  was, 
in  substance,  alleged,  that  T.  J.  Noble  acknowledged 
(before  the  notary  who  took  the  acknowledgment  of 
the  mortgage)  the  release  and  waiver  of  his  home- 
stead rights  in  and  to  the  premises  described  in  the 
mortgage,  and  that  by  a  mere  clerical  error  of  the 
notary  who  drew  the  mortgage,  the  certificate  of  ac- 
knowledgment failed  to  state  the  truth  in  regard  to 
the  acknowledgment.  The  cross-bill  prayed  that  the 
certificate  of  acknowledgment  be  performed  accord- 
ing to  the  truth.  The  complainants  interposed  a  de- 
murrer to  the  cross-bill,  which  the  court  sustained, 
and  this  is  relied  upon  as  error. 

We  shall  not  stop  to  determine  whether  the  court 
erred  in  sustaining  the  demurrer  to  the  cross-bill,  or 
not,  as  a  correct  decision  of  the  case  must  rest  upon 
other  grounds,  which  will  dispose  of  the  case  upon  its 
merits,  without  passing  upon  that  question. 

Winslow,  it  will  be  remembered,  became  the  pur- 
chaser of  the  certificate  of  purchase  from  Grow  at 
the  instance  and  request  of  Noble, — not  for  the  pur- 
pose of  speculating  out  of  the  land,  but  for  the  pur- 
pose of  aiding  Noble  to  save  something  out  of  the 


225 

land,  which  had  been  sold,  and  the  redemption  was 
about  to  expire,  and  all  would  then  be  lost  to  him,  as 
he  then  supposed.  By  inducmg  Winslow  to  purchase 
the  certificate  of  purchase,  and  thus  obtain  the  title 
to  the  land.  Noble  realized  $400  by  the  transaction. 
Now,  after  Noble  has  induced  Winslow  to  make  this 
purchase  and  pay  all  the  land  is  worth,  and  has  ob- 
tained from  Winslow  $400  and  put  it  in  his  own  pocket 
will  equity  allow  him  to  repudiate  what  he  has  done, 
retain  the  money  Winslow  paid  for  the  land,  and  re- 
cover, by  a  decree  in  chancery,  almost  one-half  in 
value  of  the  land  which  he  induced  Winslow  to  pur- 
chase? We  do  not  believe  any  precedent  can  be  found 
which  would  sanction  such  gross  inequity  and  injus- 
tice. 

It  is  an  old  and  well  established  rule  in  equity,  that 
he  who  seeks  equity  must  do  equity.  Let  us  apply 
this  rule  to  the  present  case  and  see  whether  the  de- 
cree can  be  sustained.  Before  Noble  could  call  upon 
a  court  of  equity  for  relief,  justice  and  right  would 
require  him  to  refund  Winslow  the  amount  of  money 
he  had  paid  at  the  request  of  Noble,  and  surely  equity 
would  not  allow  Noble  to  retain  the  money  Winslow 
had  paid  him,  and  at  the  same  time  give  him  the  land. 
This  would  1)6  no  less  than  sanctioning  a  palpable 
fraud. 

There  is  another  well  established  rale  in  equity 
which  ought  not  to  be  overlooked  in  a  case  of  this 
character,  which  is,  that  a  party  must  come  into  a 
court  of  equity  with  clean  hands,  otherwise  his  bill 
will  be  dismissed.  (Thorp  v.  McCullum,  1  Gilm.  614.) 
Can  it  be  said  that  Noble's  hands  are  clean  so  long 
as  he  holds  Winslow 's  money?    We  think  not. 

There  is  yet  another  feature  in  this  case  which  pre- 
cludes a  decree  in  favor  of  the  complainant  in  the  bill. 
He  not  only  induced  Winslow  to  purchase  the  land, 
but  as  a  part  of  the  purchase  contract  he  surrendered 
the  possession  of  the  property  to  him,  and  became  a 
tenant  of  Winslow  from  July  8,  1879,  to  March  1, 
1880,  at  a  stipulated  rent.     Such  is  the  effect  of  the 


226 

contract  which  was  executed  by  the  parties.    It  reads 
as  follows: 

"  Bloomington,  III.,  July  8th,  1879. 
"I  have  this  day  bought  of  T.  J.  Noble  his  farm, 
it  being  the  land  that  Daniel  Grow  now  holds  a  certi- 
ficate of  sale  of,  and  occupied  by  said  Noble,  for  which 
I  agree  to  pay  $50  per  acre,  as  follows,  to  settle  with 
and  pay  Mr.  Grow  the  money  due  him,  and  pay  the 
balance  to  said  Noble.  I  further  agree  to  let  said 
Noble  hold  possession  of  said  farm  until  March  1st, 
1880,  for  which  he  is  to  pay  me,  as  rent,  8  per  cent, 
interest  on  purchase  money,  from  time  I  pay  the 
money  until  March  1st,  1880.  I  further  agree  to  give 
said  Noble  the  first  refusal  to  rent  the  said  farm  for 
one  year  or  more,  from  March  1st,  1880,  as  may  be 
agreed  upon  hereafter. 

(Signed.)  N.  N.  AVinslow, 

T.  J.  Noble." 

In  Brown  v.  Coon,  36  111.  243,  where  the  homestead 
had  been  sold  by  the  owner  thereof,  by  deed  which  did 
not  release  the  homestead  as  required  by  statute,  it 
was  held,  as  possession  was  delivered  under  the  deed, 
the  title  passed, — that  the  homestead  right  was  lost 
by  the  abandonment  of  possession  to  plaintiff's  gran- 
tee, as  completely  as  if  there  had  been  a  relinquish- 
ment in  the  form  required  by  the  statute.  Here,  Noble 
made  no  deed  because  a  deed  was  not  necessary,  as 
the  title  had  passed  on  the  foreclosure  sale.  He  did 
not  move  off  the  premises  and  surrender  up  actual 
possession  to  Winslow,  but  when  he  became  Winslow's 
tenant  under  a  written  lease,  the  legal  effect  was  the 
same  as  if  he  had  moved  off  and  Winslow  had  moved 
on  the  premises. 

We  are,  therefore,  of  opinion  that  Noble  abandoned 
his  homestead  rights.  Indeed,  under  the  language  of 
sec.  4  of  the  Homestead  act.  Rev.  Stat.  1874,  p.  497, 
we  do  not  see  how  Noble  can  claim  homestead  rights 
in  the  premises.  It  declares:  "No  release,  waiver  or 
conveyance  of  the  estate  so  exempted  shall  be  valid 
unless  the  same  is  in  writing,  subscribed  by  said 
householder,  and  his  or  her  wife  or  husband,    *     *     * 


227 

and  acknowledged  in  the  same  manner  as  convey- 
ances of  real  estate  are  required  to  be  acknowledged, 
or  possession  is  abandoned,  or  given  pursuant  to  the 
conveyance."  Here,  when  Noble  leased  the  property 
and  became  the  tenant  of  Winslow,  possession,  within 
the  meaning  of  the  statute,  was  given  pursuant  to  the 
conveyance.    Eldridge  v.  Pierce,  90  111.  474. 

What  was  said  in  Booker  v.  Anderson,  35  111.  66, 
can  have  no  bearing  here,  as  the  statute  under  which 
that  decision  was  rendered  did  not  contain  the  clause, 
"or  possession  is  abandoned,  or  given  pursuant  to  the 
conveyance,"  as  the  statute  now  does. 

In  any  view  we  have  been  able  to  take  of  the  case, 
we  perceive  no  ground  upon  which  the  decree  can  be 
sustained. 

The  decree  will  be  reversed,  and  the  cause  re- 
manded, with  directions  to  the  Circuit  Court  to  dis- 
miss the  bill. 

Mr.  Justice  Scott  dissenting. 

Decree  reversed. 


NEWELL  V.  BUREAU  COUNTY, 
37  111.  253. 
(1865.) 

Me.  Justice  Beeese  delivered  the  opinion  of  the 
court. 

The  only  question  presented  by  thip  record,  is,  as 
to  the  propriety  of  sustaining  a  general  demurrer  to 
the  bill  of  complaint  of  appellants. 

It  is  insisted  by  appellants  that  inasmuch  as  the 
demurrer  was  general  to  the  whole  bill,  it  admitted  all 
the  facts  stated  in  the  bill  to  be  true,  and  as  fraud 
and  usury  were  charged,  those  facts  were  admitted, 
and  therefore  the  demurrer  should  have  been  over- 
ruled. 

The  rule  is,  as  we  understand  it,  and  have  re- 
peatedly stated,  that  the  effect  of  a  demurrer  is  to 
admit  all  facts  properly  pleaded,  but  not  inferences  of 
law   from   those   facts.     Stow  v.   Kussel,   decided   at 


228 

April  term,  1864;  I  Daniels'  Ch.  Pr.,  601  Mills  et  al. 
V,  Brown  et  al.,  2  Scam.  549. 

The  charges  of  fraud  and  usury  are  general,  and 
do  not  show  the  facts  on  which  the  charges  are  predi- 
cated, consequently,  it  would  be  impossible  to  answer 
them.  That  such  and  such  facts  constitute  fraud, 
or  usury,  as  the  case  may  be,  may  be  but  an  inference 
drawn  by  the  pleader  from  the  facts,  and  as  such  in- 
ferences are  not  admitted  by  the  demurrer,  the  facts 
must  be  distinctly  charged.  We  fail  to  perceive  in 
any  of  the  allegations  of  the  bill,  any  specific  charge 
of  fraud  or  usury  such  as  would  be  admitted  by  a 
general  demurrer  to  a  bill,  or  of  such  a  nature  as  to 
call  for  an  answer. 

The  whole  case  rests  upon  the  policy  adopted  by 
the  state  in  regard  to  the  disposition  of  the  swamp 
lands  granted  to  the  state  by  the  United  States,  and 
by  the  state  to  the  several  counties  in  which  those 

lands  are  situated. 
[*257]  We  had  occasion,  in  the  case  of  Supervisors 
of  Whiteside  Co.  v.  Burchell  et  al.,  31  111.  68, 
to  examine  this  whole  subject,  and  we  came  to  the 
conclusion,  to  which  we  adhere,  where  a  party  pur- 
chased swamp  lands  from  a  county  in  1856,  the  year 
in  which  appellants  purchased,  and  executed  his  notes 
for  the  absolute  payment  of  the  purchase  money,  he 
had  no  remedy  to  compel  the  county  to  appropriate 
the  proceeds  of  the  sales  of  such  lands  to  their  re- 
clamation, as  was  contemplated  by  the  legislation  on 
the  subject,  in  force  at  the  time  of  his  purchase;  but 
his  rights  in  that  regard  are  to  be  determined  by  the 
policy  subsequently  adopted  by  the  Legislature,  which 
placed  the  whole  subject  of  the  control  and  disposal 
of  these  lands,  and  the  appropriation  of  their  proceeds 
in  the  hands  of  the  several  county  authorities,  and 
released  them  from  all  the  liabilities  and  obligations 
theretofore  imposed  upon  them,  respecting  them. 

From  this,  it  follows,  no  plea  of  want  of  considera- 
tion can  be  sustained  to  a  note  given  for  the  land,  the 
reclamation  of  these  lands  being  understood  to  be  a 


229 

part  of  the  consideration  of  the  note  at  the  time  the 
same  was  executed. 

Perceiving  no  sufficient  charge  of  fraud,  usury,  or 
want  of  consideration  in  the  bill  of  complaint,  or  any 
other  fact  to  weaken  the  claim  of  the  county  to  pay- 
ment of  the  note  and  mortgage,  the  bill  appears  with- 
out equity,  and  the  court  probably  sustained  the  de- 
murrer to  it,  and  its  judgment  must  be  affirmed. 

Decree  affirmed. 


SMITH  V.  BRITTENHAM, 

98  111.  1888. 

(1881.) 

Me.  Justice  Sheldon  delivered  the  opinion  of  the 
court. 

This  was  a  bill  in  chancery,  filed  in  the  Circuit  Court 
of  DeWitt  county,  on  the  14th  day  of  August,  1874, 
by  Sarah  J.  Brittenham  against  Columbus  C.  Smith, 
to  have  set  aside  a  conveyance  of  237  acres  of  land, 
made  by  her  to  him  on  the  12th  day  of  January,  1869, 
in  exchange  for  a  stock  of  goods,  on  the  ground  of 
alleged  fraud  on  the  part  of  Smith  in  the  making  of 
the  contract  for  such  exchange. 

Personal  service  of  summons  was  had  on  Smith,  and 
he  failing  to  appear  and  answer,  the  bill  was  taken  for 
confessed  against  him  at  the  August  term,  1874. 

At  the  following  December  term  an  order  was  made 
dismissing  the  cause  for  want  of  prosecution,  which 
order,  two  days  afterward,  at  the  same  term,  was  set 
aside,  and  the  cause  reinstated  without  notice  to  Smith. 
He  did  not  appear  in  the  court  until  after  the  final  de- 
cree. At  the  December  term,  1876,  the  cause  was 
referred  to  the  master,  to  take  testimony,  etc.,  who 
reported  that  the  value  of  the  goods  received  by  the 
complainant  was  $4,500,  and  the  rental  value  of  the 
land  during  the  time  the  defendant  had  held  the  same 
under  the  deed,  to  be  $5,300,  and  at  the  same  December 
term  the  court  rendered  a  decree  cancelling  the  deed 
and  setting  off  the  value  of  the  goods  against  the  rent 


230 

of  the  land.  At  the  next  March  term  Smith  entered  a 
motion  to  vacate  the  decree  and  for  leave  to  answer 
the  bill.  The  court  overruled  the  motion,  from  which 
decision  Smith  prosecuted  an  appeal  to  this  court,  and 
the  ruling  of  the  Circuit  Court  in  refusing  to  set  aside 
the  decree  and  admit  an  answer,  was  affirmed.  See 
Smith  V.  Brittenham,  88  111.  291. 

This  court  holding  that  this  appeal  did  not  bring 
before  it  anything  but  the  decision  of  the  Circuit  Court 
overruling  said  motion,  and  the  Appellate  Court  hav- 
ing in  the  meantime  been  organized,  aftei-ward,  Smith 
sued  out  a  writ  of  error  from  the  Appellate  Court  for 
the  Third  District,  to  the  Circuit  Court,  and  filed  in 
the  Appellate  Court  a  complete  copy  of  the  record, 
and  on  a  final  hearing  in  that  court  at  the  November 
term,  1878,  the  decree  of  the  Circuit  Court,  in  the  re- 
spect of  ordering  a  writ  of  assistance  to  issue,  was  re- 
versed, and  in  all  other  respects  said  decree  was 
affirmed.  The  cause  was  remanded  to  the  Circuit 
Court,  where  such  proceedings  were  had,  at  the  March 
term,  1879,  that  another  writ  of  assistance  was  ordered 
by  the  Circuit  Court.  From  this  order  Smith  again 
appealed  to  the  Appellate  Court,  and  that  court  at  the 
May  term,  1879,  affirmed  the  order  of  the  Circuit  Court, 
awarding  the  writ  of  assistance. 

From  this  judgment  of  affirmance  Smith  again  ap- 
pealed to  this  court,  and  the  judgment  was  affirmed. 
See  Smith  v.  Brittenham,  94  111.  627.  Subsequently 
this  present  writ  of  error  was  sued  out  to  the  Appel- 
late Court,  by  which  the  entire  record  in  the  case  is 
brought  up,  and  plaintiff  in  error.  Smith,  challenges 
the  correctness  of  the  decision  of  the  Appellate  Court 
at  its  November  term,  1878,  affirming  the  decree  of 
the  Circuit  Court  except  in  the  respect  of  the  writ  of 
assistance. 

Preliminarily,  defendant  in  error  insists  that  this 
writ  of  error  will  not  lie,  in  view  of  the  previous  pro- 
ceedings above  recited,  which  have  been  had  in  the 
case, — that  in  consequence  of  them  the  decree  of  the 
Circuit  Court  has  become  res  adjudicata,  and  plaintiff 


231 

in  error  therefore  precluded  from  bringing  in  question 
its  correctness. 

It  is  very  clear  that  there  has  never  been,  in  fact, 
any  adjudication  of  this  court  in  respect  to  the  cor- 
rectness of  that  decree.  On  the  first  appeal  to  this 
court  we  distinctly  declared  that  there  was  nothing 
before  us  for  consideration  but  the  decision  of  the 
Circuit  Court  overruling  the  motion  to  vacate  the  de- 
cree and  for  leave  to  answer,  and  said  we  forbore  to 
remark  upon  the  merits  of  the  case.  On  the  second 
appeal  to  this  court,  we  said  the  appeal  was  not  from 
the  judgment  of  affirmance  of  the  Appellate  Court  at 
its  November  term,  1878,  of  the  decree  of  the  Circuit 
Court  except  as  to  the  writ  of  assistance,  but  that  it  was 
from  the  Appellate  Court's  judgment  of  its  May  term, 
1879,  affirming  the  order  of  the  Circuit  Court  award- 
ing another  writ  of  assistance,  and  that  the  entire 
record  in  the  cause  was  not  before  us. 

Only  the  two  rulings  of  the  Circuit  Court  then  have 
to  be  reviewed  by  this  court- — the  denial  of  the  motion 
to  vacate  the  decree,  and  the  order  awarding  a  writ 
of  assistance — and  it  appears  that  this  court  declined 
to  consider  anything  further.  Plaintiff  in  error  is  en- 
titled to  have  reviewed  the  in  this  court  the  |>ropriety 
of  the  main  decree  of  the  Circuit  Court,  and  we  do 
not  think  that  he  should  be  barred  from  his  present 
writ  of  error  for  that  purpose,  by  anything  which  has 
transpired  in  the  case  heretofore. 

The  plaintiff  in  error.  Smith,  makes  the  point,  that 
after  the  dismissal  of  the  cause  in  the  Circuit  Court 
at  the  December  term,  1874,  the  subsequent  vacating 
of  the  order  and  reinstating  of  the  case  at  that  term 
was  erroneous  without  notice  to  him  of  the  motion  for 
that  purpose.  We  do  not  so  think.  Smith  having  be- 
fore been  brought  into  court  by  service  of  process,  was 
bound  to  take  notice  of  all  the  orders  which  were 
made  in  the  cause  at  that  same  term  of  court,  and  as 
well  after  as  before  the  making  of  the  order  of  dis- 
missal. 

We  come  then  to  the  question  of  the  correctness  of 
the  decree  of  the  Circuit  Court.    The  default  of  Smith 


232 

admitted  such  facts  as  are  properly  alleged  in  the  bill, 
and  no  more,  and  the  inquiry  is  whether  the  bill  states 
sufficient  facts  to  wararnt  the  decree. 

We  give  the  bill  in  its  material  part.  After  describ- 
ing the  land  and  being  seized  of  it,  the  bill  proceeds : 

''Oratrix  would  further  represent  that  while  so 
seized  of  the  ]and  aforesaid,  Columbus  C  Smith,  on 
or  about  the  1st  day  of  January,  A.  D.  1869,  made  a 
proposition  to  the  husband  of  oratrix  to  trade  and  ex- 
change a  stock  of  goods  then  owned  by  said  Smith,  for 
said  land,  the  said  Smith  then  and  there  proposing  to 
said  husband  to  buy  said  land  at  the  sum  of  $14,000, 
and  pay  for  the  same  in  said  stock  of  goods,  at  their 
original  cost,  and  that  the  same  were  to  be  invoiced 
and  the  difference  either  way  to  be  paid  by  the  said 
parties;  that  after  such  negotiation  the  said  propo- 
sition was  communicated  to  oratrix ;  that  upon  the  faith 
of  such  representations,  and  imdertakings  on  the  part 
of  said  Smith,  as  to  the  hivoice  and  price  of  said  goods, 
oratrix  consented  to  make  such  trade,  and  in  consum-, 
mation  thereof,  oratrix  did,  on  the  12th  day  of  January, 
1869,  in  connection  with  her  husband,  make,  execute 
and  doliver  to  said  Smith,  a  deed  of  general  warranty 
for  said  land,  a  copy  of  which  is  hereto  annexed  and 
asked  to  be  considered  a  part  of  this  bill,  and  that  in 
pursuance  of  the  rights  and  powers  of  said  deed,  the 
said  Smith  entered  into  and  took  possession  of  said 
lands,  and  has  continued  in  such  possession  ever  since, 
receiving  the  rents  and  profits  of  the  same. 

"Oratrix  would  further  state  that  after  oratrix  con- 
sented to  make  said  exchange  upon  the  faith  of  said 
representations,  the  said  Smith,  to  injure  and  defraud 
oratrix,  made  a  false  and  fraudulent  inventory  of  said 
goods,  and  then  and  there  in  such  inventory  did  take 
advantage  of  said  John  A.  Brittenham,  he  being  at  the 
time,  to  some  extent,  unsound  in  his  mind,  and  being 
incapable  because  of  such  unsoundness  to  protect  the 
interests  and  rights  of  oratrix,  and  oratrix  charges 
that  a  false  and  fraudulent  inventory  of  such  goods 
was  made  for  the  purpose  of  cheating  oratrix,  and 
that  in  such  inventory,  the  same  being  false,  oratrix 


233 

was  cheated  out  of  a  large  amount ;  and  oratrix  further 
states  and  charges  that  a  large  amount  of  goods  m- 
cluded  in  the  inventory  was  not  delivered  to  her,  or 
her  said  husband,  or  to  any  person  for  their  use; 
but  on  the  contrary,  the  value  of  the  goods  delivered 
was  $5000  less  than  the  amount  of  inventory,  Oratrix 
further  states  that  said  goods  were  not  worth  to 
exceed  $4000;  that  the  amount  not  delivered  of 
the  goods  as  aforesaid,  and  the  falsity  of  said 
inventory,  reduced  the  actual  value  of  the  goods 
received  by  oratrix  to  the  said  amount  of  $4000; 
that  oratrix  was  ignorant  of  said  fraudulent  act 
of  said  Smith  until  a  short  time — to-wit:  five  days — 
before  the  meeting  of  the  last  term  of  this  court; 
that  oratrix  was  not  skilled  in  business  of  mer- 
chandise or  the  value  of  dry  goods,  and  that  owing 
to  said  condition  of  her  said  husband,  he  was  wholly 
unfit  to  detect  said  fraud  or  protect  the  rights  of  ora- 
trix in  the  consummation  of  said  trade;  said  Smith 
still  has  the  title  and  possession  of  said  land;  that  the 
rents  and  profits  of  said  land  since  the  said  Smith  got 
the  same,  have  been  and  are  sufficient  to  pay  said 
Smith  whatever  said  goods  were  worth  as  delivered  to 
oratrix  under  said  trade.  Forasmuch  as  your  oratrix 
is  without  an  adequate  remedy,  except  in  a  court  of 
equity,  oratrix  asks  that  said  Smith  be  made  defendant 
herein,  that  he  may  be  required  to  answer  this  bill, 
but  not  on  oath,  answer  on  oath  being  waived,  that 
an  account  be  stated  between  the  parties  as  to  the 
value  of  said  goods  and  the  use  of  said  lands,  that 
if  anything  be  due  defendant  on  such  accounting,  ora- 
trix is  ready  and  waiting  to  pay  said  defendant,  that 
in  consequence  of  the  deception  and  bad  faith  as  afore- 
said the  defendant  be  required  to  reconvey  said  land 
to  oratrix,  and  that  said  sale  be  rendered  null  and  void ; 
and  your  oratrix  asks  such  further  relief,"  etc. 

It  will  be  seen  that  the  bill  does  not  show  that  the 
goods  traded  by  Smith  for  the  land  have  been  returned 
or  offered  to  be  returned  to  him,  or  any  excuse  for 
not  doing  so.  In  Buchenau  v.  Horney,  12  111.  338,  this 
court  said:    "A  party  can  not  rescind  a  contract  of 


234 

sale,  and  at  the  same  time  retain  the  consideration  he 
has  received.  He  can  not  affirm  the  contract  as  to 
part,  and  avoid  the  residue,  but  must  rescind  in  toto. 
He  must  put  the  other  party  in  as  good  condition  as 
before  the  sale,  by  a  return  of  the  property  jjurchased. 
There  may  be  an  exception  when  the  subject  matter 
of  the  sale  is  entirely  worthless.  But  if  it  is  of  any 
benefit  to  the  seller,  the  purchaser  must  restore  it  be- 
fore he  can  put  an  end  to  the  contract. ' '  And  see  Wolf 
V.  Dietzsch,  75  111.  205,  among  many  other  cases  in 
this  court,  to  the  same  effect. 

Mr.  Benjamin,  in  his  work  on  Sales,  sec.  452,  says 
upon  this  subject:  "And  if  he  (the  buyer  of  goods) 
has  paid  the  price,  he  may  recover  it  back  on  offering 
to  return  the  goods  in  the  same  state  in  which  he  re- 
ceived them.  And  this  ability  to  restore  the  thing  pur- 
chased unchanged  in  condition  is  indispensable  to  the 
exercise  of  the  right  to  rescind,  so  that  if  the  pur- 
chaser has  innocently  changed  that  condition  while 
ignorant  of  the  fraud,  he  can  not  rescind," 

If  there  be  any  excuse  in  the  case  which  could  be 
accepted  for  not  making,  or  offering  to  make  return 
of  the  goods,  none  whatever  is  shown  by  the  bill,  so 
that  the  general  rule  as  above  stated  must  apply  here ; 
and  under  that  rule  the  bill  makes  no  case  of  a  right 
to  rescind  the  contract. 

Aside  from  the  above  we  are  of  opinion  the  facts 
alleged  in  the  bill  are  not  sufficient  to  authorize  the 
decree.  There  is  an  attempt  to  set  up  two  matters 
as  ground  for  the  rescission  of  the  contract — the 
making  of  a  false  and  fraudulent  inventory  of  the 
goods,  and  the  not  delivering  of  a  large  amount  of 
goods  included  in  the  inventory.  In  respect  to  the  last 
the  charge  is,  "that  a  large  amount  of  goods  included 
in  the  inventory  was  not  delivered  to  her, — but,  on  the 
contrary,  the  value  of  the  goods  delivered  was  $5000 
less  than  the  amount  of  the  inventory." 

Now,  taking  this  whole  charge  together,  it  really 
does  not  charge  that  any  goods  included  in  the  inven- 
tory were  kept  back.  The  attempted  statement  that 
there  was,  in  the  first  clause,  is  rendered  valueless  as 


235 

an  allegation  of  such  a  fact  by  the  last  clause  stating 
what  was  done  in  that  regard,  namely,  "but,  on  the 
contrary,  the  value  of  the  goods  delivered  was  $5000 
less  than  the  amount  of  the  inventory."  So  that,  taken 
altogether,  the  whole  charge  in  that  respect,  as  we 
read  it,  is,  that  the  value  of  the  goods  delivered  was 
$5,000  less  than  the  amount  of  the  original  cost  price 
as  appearing  by  the  inventory.  The  amount  of  the 
inventory,  we  take  to  be  the  amount  of  the  inventory 
prices,  and  the  inventory  prices  to  be  the  original  cost 
prices  of  the  goods.  If  it  be  susceptible  of  any  other 
meaning,  such  meaning  is  not  obvious,  and  the  above 
is  the  meaning  we  conceive,  which,  as  against  the 
pleader,  is  entitled  to  be  put  upon  that  expression. 

Now,  what  does  it  matter  in  the  way  of  entitling 
complainant  to  relief,  that  the  value  of  the  goods  re- 
ceived was  $5,000  less  than  the  amount  of  the  inven- 
tory— the  amount  of  the  original  cost  prices  of  the 
goods!  The  contract  price  for  the  goods  was  the 
original  cost  of  the  goods,  not  the  value  of  the  goods, 
and  the  discrepancy  between  the  value  of  the  goods 
received  and  the  original  cost  price  of  the  goods,  would 
furnish  no  ground  for  any  relief  under  the  contract. 

The  other  charge  is  in  the  general  terms  that  de- 
fendant made  a  false  and  fraudulent  inventory  of  the 
goods,  in  which  complainant  was  cheated  of  a  large 
amount,  without  at  all  naming  in  what  respect  the  in- 
ventory was  false  and  fraudulent.  Charges  of  fraud 
should  not  be  general,  but  the  facts  should  be  stated  on 
which  the  charges  are  based.  Newell  v.  Bureau  Co., 
37  111.  253. 

After  alleging  that  the  goods  were  not  worth  to  ex- 
ceed $4,000,  then  the  whole  amount  of  damage,  as  re- 
sulting from  both  the  said  causes  of  complaint,  is 
stated  to  be,  "that  the  amount  not  delivered,  of  the 
goods,  and  the  falsity  of  said  inventory,  reduced  the 
actual  value  of  the  goods  received  by  oratrix  to  the 
said  amount  of  $-1:000."  What  damage  or  ground  of 
complaint  does  this  show  under  the  contract?  Reduced 
the  value  of  the  goods  from  what  sum,  or  from  what? 

The  actual  value  of  the  goods  may  not  have  been 


236 

more  than  $4,000,  and  yet  the  original  cost  price,  at 
which  they  were  to  be  taken,  have  been  as  much  as 
$14,000,  the  full  agreed  price  for  the  land.  As  already 
observed,  the  value  of  the  goods  is  unimportant.  It 
is  their  original  cost  price  which  is  the  essential  thing. 
It  is  noteworthy  that  the  bill  fails  to  state  anything 
as  to  the  original  cost  of  the  goods,  or  as  to  the  inven- 
tory price,  or  as  to  any  discrepancy  between  the  in- 
ventory price  and  the  original  cost.  It  but  states  the 
value  of  the  goods  received,  proceeding,  seemingly, 
upon  the  theory  that  the  discrepancy  between  their 
value  and  that  of  the  land,  was  ground  sufficient  for 
having  the  contract  rescinded,  or  at  least  that  that  was 
enough  of  damage  to  show.  There  must  be  damage, 
as  well  as  fraud.  They  must  concur,  for  the  annul- 
ment of  a  contract.  The  facts  alleged  do  not  show 
damage.  The  bill  does  not  make  a  case  for  the  re- 
scinding of  the  contract  of  sale  of  the  land. 

It  is  said  that  proofs  taken  by  the  master  show  a 
case.  Without  looking  into  them  to  see  whether  they 
do  or  not,  it  is  not  enough  that  they  may  do  so, — they 
cannot  supply  the  want  of  allegations  in  the  bill.  The 
decree  must  be  according  to  the  allegations  as  well  as 
proofs,  and,  unless  the  bill  states  sufficient  facts  to 
warrant  the  decree,  it  cannot  stand. 

The  judgment  of  the  Appellate  Court  will  be  re- 
versed, and  the  cause  remanded,  with  directions  to  re- 
verse the  d"cree  of  ♦'  e  Circuit  Court,  and  remand  the 
case,  with  leave  to  amend  the  bill  if  complainant  shall 
be  so  advised,  and  with  liberty  to  answer. 

Judgment  reversed. 


GOODWIN  ET  AL.  v.   BISHOP  ET  AL. 
145  111.  421. 
(1893.) 

Craig,  J.  This  was  a  bill  in  equity,  brought  by  H. 
E.  Lowe,  trustee,  and  E.  F.  Bayley,  successor,  to  fore- 
close a  certain  trust  deed  executed  by  Caleb  Goodwin 
and  Elizabeth  Goodwin  to  secure  seven  promissory 


237 

notes,  made  payable  to  themselves,  and  indorsed  to 
Alexander  Bishop, — one  note  for  $5,000,  due  in  three 
years  after  date,  and  six  interest  notes  for  $175  each. 
The  note  of  $5,000  was  given  for  a  loan  of  that  amount 
of  money  loaned  by  Bishop  to  Goodwin,  and  the  de- 
fense attempted  to  be  set  up  in  the  answer  was  that 
the  transaction  was  usurious.  The  answer,  setting  up 
usury,  is  as  follows :  ' '  And  these  respondents  say  that 
they  did  not,  nor  did  either  of  them,  receive  the  full 
sum  of  $5,000  from  said  complainants  at  the  time  of 
making  said  loan,  nor  at  any  time,  nor  did  they  re- 
ceive any  money  at  the  date  of  said  notes  and  trust 
deed,  and  so  these  respondents  say  that  the  amount 
claimed  by  said  complainants  is  largely  tainted  with 
usury."  If  a  party  to  a  bill  in  equity  desires  to  set 
up  and  rely  upon  the  defense  of  usury,  he  must  allege 
the  facts  showing  wherein  the  usury  consists.  A  gen- 
eral charge  of  usury  in  an  answer  is  not  sufficient. 
Hosier  v.  Norton,  83  111.  519.  The  allegation  of  the 
answer  may  be  true,  and  it  by  no  means  follows  that 
the  contract  between  the  parties  was  usurious.  The 
gist  of  the  answer  is  that  the  defendants  did  not  secure 
the  full  sum  of  $5,000,  nor  did  they  secure  any  money 
at  the  date  of  the  notes.  Suppose,  however,  the  next 
day  after  the  notes  were  executed,  they  secured  $4,999, 
and  allowed  the  mortgagee  to  retain  $1  to  pay  for 
recording  the  mortgage,  this  would  be  in  harmony 
with  the  facts  disclosed  in  the  answer,  and  yet  usury 
could  not  be  established  in  such  a  state  of  facts.  Where 
the  defense  of  usury  is  relied  upon,  the  facts  consti- 
tuting the  usury  should,  as  a  general  rule,  be  clearly 
set  up  in  the  answer,  and  proved  as  alleged. 

But  it  is  said,  if  the  answer  was  insufficient,  the  com- 
plainant ought  to  have  filed  exceptions.  It  is  a  rule 
of  chancery  practice,  where  an  answer  is  defective,  it 
must  be  excepted  to ;  a  demurrer  is  not  allowable. 
Stone  V.  Moore,  26  111.  165.  But  where  the  answer 
is  not  under  oath,  exceptions  will  not  lie,  because  such 
answer  is  not  evidence  for  the  party  making  it.  Su- 
pervisors of  Fulton  Co.  V.  Mississippi  &  W.  R.  Co., 
21  111.  366;  Brown  v.  Mortgage  Co.,  110  111.  238. 


238 

But,  even  if  the  answer  was  sufficient,  we  do  not 
think  that  the  evidence  established  usury.  Bishop 
loaned  Goodwin  $5,000,  for  three  years,  at  7  per  cent, 
interest.  Lowe  testified  that  the  money  was  disposed 
of  as  follows:  "Out  of  this  loan  Mr.  Goodwin  re- 
ceived $110.65  in  cash.  I  paid  Mr.  Ward  $4,640.41  on 
May  8,  1889,  to  take  up  his  mortgage  on  this  property. 
I  paid  the  taxes,— $73.94.  I  paid  Bayley  &  Waldo  $50, 
for  examination  of  title,  etc.,  by  the  direction  of  Mr. 
Goodwin,  and  Mr.  Goodwin  paid  me  a  commission  of 
$125."  These  items  make  up  the  $5,000  loaned  by 
Bishop,  and  it  will  be  borne  in  mind  that,  at  the  time 
the  loan  was  made,  8  per  cent  was  a  legal  rate  of 
interest.  In  order,  therefore  to  make  out  that  a 
greater  rate  was  exacted  than  8  per  cent.,  it  was  neces- 
sary to  prove  that  Bishop  or  his  agent  received  the 
$50  and  the  $125  mentioned  by  Lowe  in  his  evidence. 
As  to  the  $50,  it  was  paid  by  the  direction  of  Goodwin 
to  attorneys,  for  an  examination  of  title  to  the  prop- 
erty mortgaged;  and  under  Ammondson  v.  Ryan,  111 
111.  506,  that  was  a  legitimate  transaction,  and  not 
usurious.  As  respects  the  other  item,  Goodwin  paid 
that  sum  to  Lowe  for  his  services  in  procuring  the 
loan.  Lowe  did  not  secure  the  money  for  Bishop, 
nor  did  Bishop,  so  far  as  appears,  have  any  knowl- 
edge that  Lowe  secured  the  money.  If  Goodwin  has 
seen  proper  to  pay  money  to  Lowe  for  his  services, 
that  did  not  render  the  loan  made  by  Bishop  usurious. 
Ballinger  v.  Bouland,  87  111.  513;  Cox  v.  Insurance 
Co.,  113  111.  385. 

The  court  allowed  a  solicitor's  fee  of  $250,  and  this 
is  claimed  to  be  erroneous.  The  deed  of  trust  con- 
tains a  provision  that,  in  case  of  suit  or  proceeding 
for  foreclosure,  the  proceeds  of  sale  shall,  among  other 
things,  be  applied  to  pay  an  attorney's  fee  of  5  per 
cent,  upon  the  amount  secured.  Under  this  clause 
of  the  deed  of  trust,  the  court  allowed  the  amount 
complained  of,  and  we  think  the  action  of  the  court 
was  fully  authorized. 

In  computing  the  amount  due  on  the  notes,  the  mas- 
ter in  chancery  computed  interest  from  the  date  of  the 


239 

notes,  while  it  appeared  from  the  evidence  that  the 
money  was  not  paid  over  until  a  few  days  after  the 
notes  were  executed.  Objection  being  made,  the  court, 
on  March  8,  1892,  modified  the  report,  and  deducted 
$11.72  for  excess  of  interest  computed.  At  the  same 
time,  as  the  amount  found  due  by  the  master  was  com- 
puted only  to  the  time  the  report  was  filed,  November 
30,  1891,  the  court  added  $95,  to  make  up  the  interest 
from  November  30,  1891,  to  the  date  of  decree,  March 
8,  1892.  As  interest  had  accrued  after  the  report  was 
filed,  the  court  had  the  undeniable  right  to  refer  the 
cause  to  the  master  to  determine  the  amount  then 
actually  due,  or  the  court  could,  if  it  saw  proper,  com- 
pute the  interest  without  a  reference.  Either  course 
might  be  pursued,  and,  as  the  court  chose  to  pursue 
the  latter,  we  perceive  no  objection  to  the  action  of 
the  court. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 


MONARCH  BREWING  CO.  v.  WOLFORD  ET  AL. 

179  111.  252. 

(1899.) 

Phillips,  J.  On  August  5,  1892,  Frank  Rezabek, 
through  Theodore  H.  Schintz,  borrowed  the  sum  of 
$5,500,  for  which  he  made  his  principal  note  for  that 
sum  payable  to  his  own  order  five  years  after  date. 
The  interest  was  to  be  at  the  rate  of  6  per  cent,  per 
annum,  payable  semi-annually,  which  was  evidenced  by 
ten  coupon  notes,  of  $165  each,  all  payable  to  the  order 
of  the  maker ;  and  these,  with  the  principal  note,  were 
by  the  maker  indorsed.  To  secure  the  payment  of 
these  notes,  the  maker  thereof  and  his  wife  made  and 
executed  to  Theodore  H.  Schintz  their  deed  of  trust 
of  the  same  date  as  the  notes,  conveying  certain  lands. 
On  April  17,  1895,  a  bill  was  filed  in  the  name  of  Fred- 
erick T.  Zentner  and  Theodore  H.  Schintz,  in  the  Su- 
perior Court  of  Cook  county,  to  foreclose  this  trust 
deed,  in  which  it  was  alleged  that  Zentner  was  the 
owner  and  holder  of  the  principal  note  and  the  last  six 


240 

of  the  coupon  notes;  that  the  first  four  coupon  notes 
had  been  paid,  but  default  had  been  made  on  that  due 
February  5,  1895,  because  of  which  Zentner  had  de- 
clared a  forfeiture,  and  the  principal  note,  with  the 
accrued  interest,  had  become  due  under  the  provisions 
of  the  trust  deed.  A  decree  was  rendered  on  that  bill 
for  the  sum  of  $6,356.20,  and  sale  ordered.  After  due 
notice,  sale  was  made  of  the  mortgaged  premises  to 
one  Thomas  Blaha  for  $7,500,  which  was  approved  by 
the  court,  and  a  certificate  of  sale  made  and  recorded. 
The  plaintiff  in  error  had  on  August  17,  1893,  recov- 
ered a  judgment  against  the  mortgagors  for  $1,055, 
with  costs,  in  the  Circuit  Court  of  Cook  county.  De- 
siring to  redeem  from  the  sale,  the  plaintiff  in  error  had 
issued  a  pluries  execution  upon  its  judgment,  and 
placed  the  same  in  the  hands  of  the  sheriff  of  Cook 
county,  with  the  requisite  amount  for  redemption,  viz., 
$7,951.25.  On  August  19,  1896,  redemption  was  made, 
and  on  sale  the  amount  of  redemption  was  bid  by 
plaintiff  in  error,  and  deed  was  made  to  it,  which  was 
filed  for  record  November  16,  1896.  On  August  9, 
1897,  the  defendant  in  error  Anna  M.  Wolford  filed 
in  the  Superior  Court  of  Cook  county  her  bill  to  fore- 
close the  same  trust  deed  to  secure  the  same  notes, 
alleging  that  she  was  the  owner  and  holder  of  the 
principal  note,  and  the  last  coupon,  due  August  5,  1897, 
and  had  always  been  such  owner ;  that  default  had  been 
made  in  the  payment  of  said  two  last-mentioned  notes. 
It  was  further  alleged  that  the  bill  of  Zentner  against 
Eezabek  was  unauthorized  by  her ;  that  she  had  never 
derived  any  benefit  therefrom;  that  Zentner  was  not 
the  owner  of  said  notes,  and  never  was ;  that  he  did  not 
procure  the  filing  of  the  bill,  nor  engage  the  attorney, 
Ives,  who  appeared  in  that  case;  that  Ives  was  not 
solicitor  for  the  owner  of  said  notes ;  and  that  Zentner 
and  Schintz  had  no  controversy  with  Rezabek.  In  this 
last-mentioned  bill  the  judgment,  sale  under  first  de- 
cree, the  redemption,  and  the  execution  of  the  deed  are 
set  up,  and  the  decree  under  which  the  first  sale  was 
made  is  alleged  to  be  fraudulent  and  void  for  being 
wholly  fictitious ;  and  it  asks  to  have  the  decree  in 


241 

the  first  foreclosure  suit,  the  master's  certificate  of 
sale,  the  redemption  and  sale  thereunder  on  the  pluries 
execution,  and  the  deed  thereon,  held  fictitious,  fraud- 
ulent, and  void,  and  to  be  declared  a  cloud  on  her  title 
and  subject  to  her  claim,  and  prays  a  foreclosure. 
The  plaintiff  in  error  was  made  a  party  defendant, 
with  other  necessary  parties,  to  said  bill,  and  the 
sheriff  made  return  on  the  summons  of  service  on  the 
plaintiff  in  error,  a  corporation,  by  delivering  a  copy 
thereof  to  its  president.  On  October  26,  1897,  a  de- 
fault of  the  x)laintiff  in  error  to  the  bill  of  defendant 
in  error  Wolford  was  taken,  and  a  decree  pro  confesso 
entered,  which  decree  found  the  facts,  and  granted 
the  relief  prayed  for  in  the  bill  filed  by  said  Wolford. 
A  sale  under  this  last-mentioned  decree  was  ordered, 
and  made  on  November  23,  1897,  at  which  John  B. 
(Robertson,  who  is  one  of  the  defendants  in  error,  be- 
came the  purchaser,  which  sale  was  duly  approved. 
On  the  face  of  the  record,  the  proceedings  under  both 
bills,  and  for  redemption  from  sale,  were  regular. 

The  plaintiff  in  error  sues  out  this  writ  of  error, 
and  asks  this  court  to  review  the  last  decree,  because, 
it  is  claimed,  the  averments  of  the  bill  are  insufficient 
to  support  the  decree.  Plamtiff  in  error  insists  that 
there  is  no  sufficient  averment  of  facts  constituting 
fraud  in  the  bill  of  defendants  in  error,  but  merely 
the  averment  that  the  first  decree  was  fictitious  and 
fraudulent.  It  also  insisted  the  bill  contains  no  suffi- 
cient averment  that  the  notes  were  never  out  of  the 
possession  of  complainant. 

It  is  a  well-settled  rule  that  a  defendant  to  a  bill  in 
chancery,  where  a  default  and  decree  pro  confesso  have 
been  entered,  may,  on  error,  contest  the  sufficiency  of 
the  bill  itself,  or  that  its  averments  do  not  justify  the 
decree.  Gault  v.  Hoagland,  25  111.  241 ;  Wing  v.  Crop- 
per, 35  111.  256;  Martin  v.  Hargardine,  46  111.  322; 
DeLeuw  v.  Neely,  71  111.  473;  Hannas  v.  Hannas,  110 
111.  53;  Railroad  Co.  v.  Ackley,  171  111.  100,  19  N.  E. 
222.  The  decree  must  not  be  broader  than  the  aver- 
ments of  the  bills,  and  those  averments  must  be  such 
as  to  justify  the  relief  prayed.     Under  a  decree  pro 


242 

confesso,  however,  a  defendaiit  cannot,  on  error,  allege 
the  want  or  insufficiency  of  the  testimony,  or  the  in- 
sufficiency or  amount  of  the  evidence,  that  may  have 
been  heard  by  the  court  entering  the  decree.  Gault  v. 
Hoagland,  supra.  Where  the  defendants  are  persons 
not  under  disability,  and  a  default  is  entered,  a  decree 
pro  confesso  follows  as  a  matter  of  course.  Such  de- 
cree, if  warranted  by  the  averments  of  the  bill,  is  un- 
assailable. 

The  bill  in  this  case  alleges,  in  substance,  that  no 
such  person  as  Frederick  Zentner  exists,  and  that  the 
name  is  fictitious ;  that  he  was  not,  and  never  had  been, 
the  owner  of  the  notes  described  in  the  bill  filed  in  his 
name;  that  he  did  not  engage  Ives,  the  attorney  who 
filed  the  suit,  to  do  so;  and  that  Zentner  and  Schintz 
had  no  controversy  with  Rezabek.  The  bill  also  alleges 
that  complainant  Anna  M.  Wolford  has  been  the  owner 
and  holder  of  said  $5,500  note  and  said  trust  deed  from 
the  time  of  said  loan  to  Rezabek,  August  5,  1892,  con- 
tinuously until  the  present  time,  and  is  now  the  legal 
holder  and  owner  thereof.  It  also  alleges  the  filing  of 
a  bill  April  17,  1895,  in  the  name  of  Zentner  and 
Schintz,  against  Rezabek,  the  Monarch  Brewing  Com- 
pany and  others,  wherein  it  was  alleged  that  Zentner 
was  the  owner  of  said  $5,500  note.  It  also  alleges  that 
complainant  had  no  knowledge  or  information  of  said 
suit,  and  the  proceedings  under  the  same,  until  July 
21,  1897,  that  she  never  employed  Schintz  or  Ives  to  file 
any  bill  against  Rezabek,  and  that  she  never  adopted 
said  proceeding,  or  derived  any  benefit  therefrom. 
These  are  sufficient  averments  of  fraud,  and  charge 
specific  acts  constituting  the  fraud.  The  ownership 
of  the  notes  by  this  defendant  in  error  is  thereby  suffi- 
ciently alleged.  In  Roth  v.  Roth,  104  111.  35,  it  was 
held:  "It  is  not  sufficient,  as  it  has  often  been  held 
by  this  court,  for  the  purpose  of  successfully  assailing 
a  transaction  on  the  ground  of  fraud,  to  charge  fraud 
generally;  but  the  complaining  party  must  state  in  his 
pleading,  and  prove  on  the  trial,  the  specific  acts  or 
facts  relied  on  as  establishing  fraud."  To  the  same 
effect  are  Newell  v.  Board,  37  111.  253,  and  Smith  v. 


243 

Brittenham,  98  111.  188.  Allegations  that  a  bill  to 
foreclose  a  mortgage  was  brought  in  the  name  of  one 
not  the  owner,  and  without  the  knowledge  or  consent 
of  the  owner,  and  by  which  that  owner  is  deprived  of 
all  benefit,  are  distinct  averments  of  fraud.  The  aver- 
ment that  complainant  was  the  owner  and  holder  of 
the  notes,  and  that  she  had  always  been  such,  is  suffi- 
cient. The  averments  of  the  bill  were  sufficient  to 
authorize  the  decree,  which  is  not  broader  than  the 
bill.  We  find  no  error  in  the  record,  and  the  decree 
of  the  Superior  Court  of  Cook  county  is  affirmed. 

Decree  affirmed. 


TOLBS  V.  JOHNSON, 

72  111.  App.  182. 
(1897.) 

Me.  Justice  Seaes  delivered  the  opinion  of  the  court. 

This  appeal  is  from  a  decree,  which,  upon  sustaining 
a  general  demurrer  to  the  bill  of  complaint,  dismissed 
the  same  for  want  of  equity. 

The  averments  of  the  bill  are  substantially  as  fol- 
lows : 

That  a  judgment  was  entered  by  confession  in  the 
name  of  Jesse  G.  Wells,  May  13,  1895,  in  the  Circuit 
Court,  against  appellee  John  Alquist,  upon  three  prom- 
issory notes,  each  of  said  notes  made  payable  to  the 
order  of  the  State  Bank  of  Chicago,  and  signed  by  ap- 
pellees John  Alquist  and  John  Johnson.  Each  of  said 
notes  was  indorsed  as  follows:  "Without  recourse,  the 
State  Bank  of  Chicago."  A  warrant  of  attorney  was 
attached  to  each  note  authorizing  any  attorney  of  any 
court  of  record  to  enter  judgment  by  confession  on 
the  note  in  favor  of  the  holder  against  the  makers 
thereof. 

On  the  daj^  the  judgment  was  entered,  John  Alquist 
was  the  owner  in  fee  simple  of  lot  19,  described  in  the 
bill. 

It  is  averred  in  the  bill  that  said  judgment  was 
caused  to  be  entered  by  said  Jesse  G.  Wells,  by  the 


244 

procurement  of  said  Johnson,  against  Alquist  alone, 
with  the  intention  of  defrauding  the  said  Alquist 
thereby,  and  for  the  purpose  of  enforcing  the  pay- 
ment of  said  judgment  out  of  the  real  estate  afore- 
said, and  that  Alquist  had  no  knowledge  of  the  exist- 
ence of  the  judgment  against  him,  and  that  Johnson, 
with  the  intention  of  defrauding  Alquist  and  obtain- 
ing an  undue  advantage  over  him,  obtained  from  the 
defendant,  Wells,  for  the  consideration  of  one  dollar, 
an  assignment  of  said  judgment  in  the  month  of  May, 
1895. 

That  on  June  23,  1895,  John  Alquist,  by  warranty 
deed,  conveyed  said  real  estate  to  Ludwig  S.  Bekken, 
and  on  July  31,  1895,  Ludwig  S.  Bekken,  by  warranty 
deed,  conveyed  said  real  estate  to  appellant;  that 
neither  Alquist  nor  his  grantees  knew  of  the  existence 
of  the  judgment,  nor  of  the  execution  theeron,  nor  of 
the  levy  and  sale  of  the  real  estate  until  after  the 
expiration  of  twelve  months  from  the  sale.  That  on 
October  31,  1895,  Johnson  procured  an  execution  to 
be  issued  on  said  judgment,  and  levied  upon  said  real 
estate,  and  at  the  sale  thereof  bid  in  the  real  estate 
for  the  amount  of  the  judgment,  and  gave  the  sheriff 
a  receipt  in  full  satisfaction  of  the  execution  and  costs ; 
that  the  sheriff  retained  only  $13.78  for  his  costs  and 
commissions,  which  sum  was  the  total  amount  actually 
paid  by  the  said  Johnson  for  said  certificate  of  pur- 
chase. 

It  is  further  averred  in  the  bill,  that  Johnson  fraud- 
ulently kept  said  proceedings,  sale  and  purchase  a 
secret  from  Alquist  and  complainant  (appellant),  and 
that  the  said  proceedings  and  sale  were  a  fraud  upon 
the  rights  and  equities  of  complainant.  It  is  further 
charged  in  the  bill,  that  Johnson  knew  on  October  31, 
1895,  and  before  that  date,  that  the  complainant  had 
purchased  and  become  the  owner  of  said  premises. 

The  bill  further  avers  that  on  January  11,  1897, 
J.  J.  Toles  obtained  a  judgment  against  John  Alquist, 
and  as  a  judgment  creditor  redeemed  from  said  sale 
and  paid  to  the  sheriff  the  amount  due ;  that  the  sheriff, 
upon  receipt  of  said  redemption  money,  proceeded  in  J 


245 

due  form  of  law  and  sold  the  said  real  estate  to  J.  J. 
Toles  at  public  auction  for  the  amount  of  the  redemp- 
tion money  and  the  costs  of  sale,  and  in  pursuance  of 
the  same,  immediately  after  the  sale,  made  a  deed  of 
the  premises  to  said  J*  J.  Toles. 

The  bill  further  averred  that  Ludwig  S.  Bekken 
and  John  Alquist,  the  grantors  of  appellant  of  the 
premises  aforesaid,  were  each  wholly  insolvent,  and 
that  whatever  judgment  might  be  obtained  against 
them,  or  either  of  them,  could  not  be  collected. 

The  bill  was  filed  by  appellant  against  the  sheriff  of 
Cook  county,  John  Johnson,  Jesse  G.  Wells  and  John 
Alquist,  and  the  relief  prayed  was  that  the  redemption 
money  then  in  the  hands  of  said  sheriff  might  be 
treated  as  proceeds  of  the  sale  of  said  real  estate,  and 
declared  a  trust  fund  in  the  hands  of  said  sheritf  and 
subjected  to  the  payment  of  the  claim  of  appellant. 

A  temporary  injunction  was  issued  upon  the  filing 
of  the  bill,  restraining  the  sheriff  from  paying  over 
said  money  to  John  Johnson,  and  restraining  said 
Johnson  from  assigning  or  otherwise  disposing  of  the 
certificate  of  purchase  issued  to  him  by  said  sheriff, 
upon  the  making  of  the  sale  aforesaid.  On  May  3, 
1897,  upon  argument  of  the  general  demurrers  filed  to 
the  bill,  the  Circuit  Court  dissolved  the  temporary  in- 
junction and  dismissed  the  bill. 

It  is  contended  that  it  appears  from  the  averments 
of  the  bill  and  the  necessary  inferences  therefrom,  that 
the  notes  were  obtained  from  the  bank  by  John  John- 
son for  the  purpose  of  procuring  a  judgment,  to  be 
entered  upon  them  in  the  name  of  Wells,  against  John 
Alquist  alone,  with  fraudulent  intent,  and  that  this 
amounted  to  a  payment  of  the  notes  by  Johnson,  one  of 
the  payors,  and  therefore  an  extinguishment  of  the 
notes  resulted. 

To  this  we  cannot  assent.  It  was  the  purpose  of 
the  bill  to  show  that  Johnson,  one  of  the  makers  of 
the  notes,  had  paid  them,  and  that  the  liability  of 
Alquist  upon  the  notes  had  thereby  been  extinguished, 
it  was  a  simple  matter  to  have  alleged  such  fact  of 
pajTnent.    After  demurrer  had  been  argued  and  susr 


246 

tained,  appellant  might  still  have  taken  leave  to  amend, 
and  could  then  have  alleged  the  fact  which  counsel  now 
seek  to  have  supplied  by  inference  and  argument. 
Argument  and  inference  cannot  thus  take  the  place  of 
necessary  positive  allegation. 

But  is  is  argued  that  the  transactions  through  which 
Johnson  acquired  the  right  to  the  redemption  money, 
being  fraudulent,  therefore  equity  will  impress  upon 
the  fund,  i.  e,,  the  redemption  money,  a  trust  in  favor  of 
appellant  as  cestui  que  trust.  We  are  unable  to  see  the 
force  of  this  contention.  The  premise  upon  which  the 
argument  rests  is  wholly  wanting.  The  bill  contains  no 
allegation  of  fact  which  constitutes  fraud.  It  is  true  that 
there  is  much  statement  of  fraud  as  a  conclusion  of 
the  pleader,  but  there  is  absence  of  any  allegation  of 
acts  or  facts  to  support  such  conclusion.  Such  state- 
ments of  conclusion  are  of  no  avail.  Roth  v.  Roth,  104 
111.  46;  East  St.  Louis  Conn.  Ry.  Co.  v.  People,  119 
111.  182. 

The  case  of  Darst  v.  Thomas,  87  111.  225,  which  is 
cited  in  support  of  the  contention  of  appellant,  is 
clearly  distinguishable  from  the  case  here.  If  in  this 
case  the  bill  alleged  that  the  debt  secured  by  the  notes 
in  question  was  equitably  the  debt  of  Johnson  and 
not  equitably  the  debt  of  x\lquist,  then  the  contention 
of  appellant  might  find  support  in  the  case  cited.  But 
the  bill  wholly  fails  in  any  such  allegation.  So  far  as 
the  bill  shows,  the  debt  secured  by  the  notes  may  have 
been,  in  equity,  the  debt  of  Alquist  only.  One  seeking 
relief  in  equity  must  allege  in  distinct  terms  the  facts 
necessary  thereto. 

The  demurrer  to  the  bill  was  properly  sustained. 

Decree  affirmed. 


247 

JACKSON  V.  JACKSON, 

114  111.  274. 

(1893.) 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court . 

It  is  first  contended  by  appellee  that  there  is  no 
such  error  appearing  on  the  face  of  the  decree  as  will 
authorize  a  court  of  equity  to  interfere  by  bill  of  re- 
view. If  there  has  been  an  erroneous  application  of 
the  facts  found  by  the  decree,  a  court  of  equity  may 
revise  or  reverse  the  decree  by  bill  of  review.  Evans 
V.  Clement,  14  111.  208.  The  facts  upon  which  the  court 
found  that  John  Jackson  was  entitled  to  hold  the  prem- 
ises as  tenant  by  curtesy,  all  appear  on  the  face  of 
the  decree. 

The  date  of  the  purchase  of  the  lands  by  Paulina  A. 
Jackson,  with  their  description,  date  of  her  marriage, 
date  of  the  birth  of  her  children,  and  date  of  her  death,, 
all  appear  on  the  face  of  the  decree.  If,  therefore, 
the  decree  under  the  facts  as  found,  was  erroneous, 
it  could  be  corrected.  The  next  question  presented 
is,  whether  the  complainants  or  either  of  them  have 
lost  their  right  to  bring  this  bill,  by  lapse  of  time.  As 
has  been  seen,  the  decree  was  rendered  on  the  sixth 
day  of  April,  1883,  and  this  bill  was  brought  on  the 
twentieth  day  of  August,  1890.  No  time  has  been  pre- 
scribed by  statute  within  which  a  bill  of  review  must 
be  brought,  but  writs  of  error  are  required  to  be  sued 
out  within  five  years  from  the  time  a  judgment  or 
decree  has  been  rendered;  and  in  analogy  to  the  time 
prescribed  for  prosecuting  writs  of  error,  it  has  been 
held  that  a  bill  of  this  character  should  be  brought 
within  the  time  allowed  for  suing  out  a  writ  of  error. 
Lyon  V.  Robbins,  46  111.  278.  In  case  of  writ  of  error, 
sec.  86,  chap.  110,  of  our  Practice  Act,  prescribes, 
that  a  writ  of  error  shall  not  be  brought  after  the 
expiration  of  five  years  from  the  rendition  of  the  de- 
cree or  judgment,  but  if  the  party  entitled  to  the  writ 
was  an  infant  when  the  judgment  was  entered,  the 
time  of  minority  shall  be  excluded  from  the  five  years. 


248 

Applying  this  rule  to  the  present  case,  which  we  think 
should  be  done,  John  M.  Jackson,  one  of  the  com- 
plainants, as  found  by  the  court  in  this  decree,  was 
born  August  25,  1866;  he  would  not,  therefore,  be  of 
age  until  August  25,  1887,  and,  excluding  his  minority, 
he  would  have  until  August  25,  1892,  to  bring  his  bill, 
and  the  bill  was  filed  two  years  before  the  time  ex- 
pired. So  far,  therefore,  as  John  M.  Jackson  is  con- 
cerned, his  bill  was  brought  in  apt  time.  As  respects 
the  other  complainant,  he  occupies  a  different  posi- 
tion; he,  as  appears,  became  of  age  in  October,  1883, 
and  hence  would  be  barred  in  October,  1888.  It  is, 
however,  said  that  the  time  did  not  begin  to  run  until 
the  suit  was  finally  disposed  of  in  March,  1889.  We 
do  not  concur  in  that  view.  The  rights  of  all  the  par- 
ties as  to  their  title  and  interest  in  the  premises  were 
fully  and  definitely  determined  and  settled  by  the  de- 
cree of  April  6,  1883.  That  was  a  final  decree  and 
as  to  all  persons  who  were  parties  to  the  proceeding, 
and  under  no  disability,  the  decree  could  not  be  re- 
viewed by  writ  of  error  or  bill  of  review  after  five 
years,  and  the  fact  that  the  cause  remained  on  the 
docket  until  1889,  and  was  then  stricken  from  the 
docket,  does  not  materially  affect  the  question.  The 
decree  of  April  6,  1883,  vs^as  the  only  one  ever  entered 
in  the  case  and  there  was  nothing  to  prevent  a  writ  of 
error  from  being  prosecuted  to  review  the  decree  at 
any  time  after  it  was  rendered,  for  the  period  of  five 
years. 


WATTS  V.  RICE, 
192  111.  123. 
(1901.) 

Mr.  Justice  Carter  delivered  the  opinion  of  the 
court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court 
of  Washington  county  upon  a  bill  of  review,  filed  to 
review  and  change  a  decree  in  a  suit  in  partition.  The 
decree  in  partition  had  determined  the  interests  of 


249 

respective  parties  to  the  lands  in  question,  and  there 
had  been  a  sale  of  the  lands  and  a  payment  of  the 
purchase  money  to  the  master,  but  no  distribution  of 
the  proceeds  had  been  made.  The  bill  of  review  does 
not  attack  the  sale,  but  seeks  to  change  the  decree 
fixing*  the  interests  of  the  parties,  and  also  the  basis 
of  distribution. 

The  facts  necessary  to  an  understanding  of  the  case 
are,  that  Jeremiah  Rice  died  testate,  as  found  by  the 
decree  in  partition,  in  June,  1876,  but  as  found  by  the 
decree  upon  the  bill  of  review,  in  December,  1878.  The 
bill  and  decree  in  partition  alleged  and  found  that  he 
died,  seized  of  the  north  half  of  the  northeast  quarter 
and  the  northeast  quarter  of  the  northwest  quarter  of 
section  10,  and  the  south  half  of  the  southeast  quar- 
ter (except  ten  acres  described),  and  the  southeast 
quarter  of  the  southwest  quarter  of  section  3 — all  in 
township  3,  south,  range  3,  west  of  the  third  principal 
meridian;  also  that  he  left  surviving  him  Mary  H. 
Eice,  his  widow,  and  nine  children  and  four  grand- 
children, one  of  which  grandchildren  was  the  child  of 
a  deceased  daughter,  and  three  the  children  of  a  de- 
ceased son.  Before  the  proceedings  in  partition  there 
had  been  sales  and  conveyances  of  the  interests  of 
many  of  the  heirs,  and  the  decree  found  and  fixed  the 
interest  of  (among  others)  James  A.  Watts,  appellant 
herein,  to  be  the  undivided  two-elevenths,  and  of  Al- 
exander Z.  Rice,  appellee  herein,  the  undivided 
136/308  of  said  lands.  The  original  bill  for  partition 
was  filed  by  said  Alexander  Z.  Rice  and  James  A. 
Watts.  The  bill  of  review  was  filed  by  said  Alexander 
Z.  Rice  and  other  of  the  heirs,  and  alleged  that  Mas- 
sey  Rice  was  the  first  wife  of  Jeremiah  Rice,  and  that 
she  died  in  1845,  seized  of  the  title  to  eighty  acres  of 
said  land,  viz.,  the  northeast  quarter  of  the  northwest 
quarter  of  section  10  and  the  southeast  quarter  of  the 
southwest  quarter  of  section  3  and  that,  subject  to  his 
estate  by  the  curtesy,  it  descended  to  her  children, 
who  were  eight  of  the  said  eleven  children  of  Jere- 
miah Rice,  and  that  the  other  three  were  children  of 
Mary  H.  Rice,  his  second  wife,  and  were  not  entitled 


250 

to  any  part  of  said  eighty  acres,  and  that,  there- 
fore, the  former  decree  was  erroneous  and  should  be 
corrected.  It  was  alleged,  also,  that  the  complainants 
did  not  know  of  said  facts  at  the  time  of  the  former 
proceedings  and  could  not  have  ascertained  the  same 
by  reasonable  diligence.  Certain  of  the  parties  also 
filed  a  bill  of  interpleader  and  a  cross-bill  setting  up 
a  mortgage  given  by  certain  heirs  on  their  interest 
in  the  property  to  secure  certain  notes  they  had  given. 
Issues  were  made,  and  on  the  hearing  the  court  found 
that  said  notes  and  mortgage  were  barred  by  limita- 
tion, but  granted  the  prayer  of  the  bill  of  review  and 
corrected  the  former  decree,  and  ordered  a  distribu- 
tion of  the  proceeds  of  the  sale  of  said  eighty  acres 
among  the  heirs,  or  their  grantees,  of  said  Massey 
Rice,  and  not  among  all  the  heirs,  and  their  grantees, 
of  said  Jeremiah  Rice,  as  the  former  decree  had  ad- 
judged. 

It  appeared  from  the  evidence  that  the  eighty  acres 
constituted  a  part  of  the  Jeremiah  Rice  farm  and  that 
he  had  had  possession  until  his  death  and  claimed  to 
own  it,  and  his  title  to  it  seems  never  to  have  been 
questioned  till  about  the  time  the  bill  of  review  was 
filed;  but  it  was  proved  by  certified  copies  of  United 
States  patents  that  it  was  entered  by  Massey  Rice  and 
that  the  patents  were  issued  to  her  of  lands  subject  to 
sale  at  Kaskaskia,  and  said  patents  showed  entries  on 
their  face  as  follows:  One,  "Recorded  Illinois,  vol.  133, 
page  316,"  and  the  other,  "Recorded  111.  vol.  141, 
page  112."  Complainants  also  gave  in  evidence  a 
certificate  of  the  Auditor  of  Public  Accounts  of  this 
state  that  he  was  custodian  of  the  records  of  the  United 
States  land  office  formerly  located  at  Kaskaskia,  and 
that  such  records  show  that  one  of  said  forty-acre 
tracts  was  entered  by  Massey  Rice  on  September  15, 
1836,  and  the  other  February  22,  1839.  Alexander  Z. 
Rice,  complainant  in  the  bill  of  review  and  also  com- 
plainant in  the  bill  for  partition,  testified  that  he  first 
learned  that  the  title  to  the  eighty  acres  was  in  Mas- 
sey Rice,  a  few  months,  only,  before  the  bill  of  review 
was  filed;  that  he  learned  it  from  the  abstracter,  who 


251 

asked  him  who  Massey  Rice  was,  and  who  told  him 
''there  was  no  connection  with  the  title."  Before  that, 
and  when  he  bought  out  the  interests  of  some  of  the 
heirs,  it  had  been  considered  that  the  interest  of  each 
of  the  eleven  children  of  Jeremiah  Rice  in  all  the 
lands  was  one-eleventh.  It  is  clear  from  the  evidence 
that  it  was  so  understood  by  all  the  parties  in  inter- 
est until  it  was  disclosed  by  the  abstracter,  in  mak- 
ing an  abstract,  that  the  patent  title  to  the  eighty  acres 
was  never  in  Jeremiah  Rice,  but  was  in  Massey  Rice, 
his  first  wife ;  but  there  was  no  evidence  whatever 
that  the  complainants  in  the  bill  of  review,  who  were 
also  parties  to  the  partition  suit, — one  of  them,  Alex- 
ander Z.  Rice,  the  principal  owner,  being  complainant 
in  that  suit, — used  any  diligence  whatever  to  ascer- 
tain the  true  state  of  the  title  to  that  land.  Ques- 
tions of  estoppel  and  other  defenses  set  up  by  the 
appellants  have  been  urged  in  addition  to  complain- 
ants' lack  of  diligence,  but  as  the  latter  is  a  sufficient 
defense  we  do  not  find  it  necessary  to  consider  any 
other. 

It  must  be  presumed  that  parties  interested  in  land 
and  seeking  its  partition  among  them,  will  make,  or 
cause  to  be  made,  an  examination  of  the  title^^  in  order 
that  the  court  may  render  a  proper  decree,  and  it  is 
not  sufficient  to  show,  in  support  of  their  bill  for  a  re- 
view of  the  proceedings  and  the  correction  of  the  de- 
cree because  of  newly  discovered  matter,  that  they 
were  ignorant  of  the  title.  The  bill  properly  alleged 
that  they  could  not  have  discovered  the  new  matter 
by  reasonable  diligence.  This  necessary  allegation 
should  have  been  supported  by  proof.  If  the  facts 
were  such  that  the  allegation  could  not  be  proved  be- 
cause the  title  to  the  land  was  a  matter  of  public  rec- 
ord open  to  the  inspection  of  every  one,  the  rule  would 
not  be  changed  or  rendered  inapplicable,  but  only  the 
fact  made  apparent  that  there  was  a  failure  to  exer- 
cise reasonable  diligence  in  the  examination  of  the 
title.  Such  an  examination  prior  to  the  partition  pro- 
ceedings would  have  disclosed  the  same  title  in  Massey 
Rice  now  asserted  in  the  bill  of  review.    A  bill  of  re- 


252 

view  based  on  newly  discovered  evidence  is  designed 
to  accomplish  the  same  purpose  as  a  petition  for  a 
rehearing  in  chancery  or  a  motion  for  a  new  trial  at 
law.  Such  a  petition  or  motion  must,  however,  be 
filed  or  made  during  the  term,  while  a  bill  of  review 
is  filed  only  after  the  term  at  which  the  decree  was 
entered.  {Elzas  v.  Elzas,  183  111.  160.)  But  diligence 
must  be  shown  in  either  case.  Not  only  must  the 
matter  be  new  and  sufficient  to  have  produced  a  dif- 
ferent decree  from  the  one  rendered,  but  it  must  be 
such  that  the  party,  by  the  use  of  reasonable  diligence, 
could  not  have  known  of  it  before  the  hearing,  so  as 
to  have  produced  it  at  that  time.  Boyden  v.  Reed,  55 
111.  458;  Washurn  S  Moen  Manf.  Co.  v.  Wire  Fence 
Co.,  119  id.  30;  3  Ency.  of  PI.  &  Pr.  582. 

It  is  also  contended  by  appellants  that  the  decree 
of  partition  was  essentially  a  consent  decree,  and  that 
a  bill  of  review  will  not  lie  to  correct  or  change  a  con- 
sent decree.  {Cox  v.  Lynn,  138  111.  195;  Flagler  v. 
Crow,  40  id.  414.)  The  rule  contended  for  is  undoubt- 
edly correct,  but  we  need  not  consider  whether  the 
former  decree  can  be  said  to  have  been  entered  by 
consent.  True,  the  principal  party  in  interest  and 
one  of  the  complainants  in  the  bill  of  review  was  one 
of  the  two  complainants  in  the  partition  suit,  and 
asked  the  court  in  that  case  to  make  the  decree  which 
was  made  and  which  he  now  asks  the  court  to  change 
and  correct.  But  it  is  sufficient  to  dispose  of  the  bill, 
that  the  complainants  failed  to  exercise  such  reason- 
able diligence  as  would  have  disclosed  the  true  state 
of  the  title. 

The  court  below  properly  decided  that  the  notes 
and  mortgage  set  up  by  the  interpleader  and  cross- 
bill were  barred.  They  had  been  due  and  nothing 
paid  on  them,  nor  any  promise  to  pay,  for  upwards 
of  eighteen  years.  But  for  the  error  pointed  out  the 
decree  must  be  reversed  and  the  cause  remanded  to 
the  Circuit  Court,  with  directions  to  dismiss  the  1)111 
of  review  as  well  as  the  interpleader  and  cross-bill. 
Reversed  and  remanded  with  directions. 


253 

Mcdonald  v.  asay, 

139  111.  123. 
(1891.) 

Me.  Justice  Scholfield  delivered  tlie  opinion  of  the 
court. 

Decree  was  rendered  in  the  Circuit  Court  of  Cook 
county,  on  the  twenty-first  of  December,  1886,  in 
favor  of  Paris,  Allen  &  Co.,  against  Edward  G.  Asay, 
as  assignee  of  Gage  &  Kice,  for  $2,850.  Asay  appealed 
from  that  decree  to  the  Appellate  Court  for  the  First 
District,  and  M.  C.  McDonald  became  his  surety  upon 
his  appeal  bond.  The  decree  of  the  Circuit  Court  was 
affirmed  by  the  Appellate  Court,  and  thereafter  Mc- 
Donald paid  the  amount  of  the  decree  to  Paris,  Allen 
&  Co.  After  making  such  pajTuent,  McDonald  caused 
an  execution  to  be  issued  on  the  decree,  and  levied  it 
upon  lands  situated  in  Ogle  county,  the  title  of  record 
whereof  was  in  Emma  0.  Asay  and  Margaret  I.  Asay, 
and  he  afterwards  obtained  leave  to  file  what  he  termed 
a  supplemental  bill  in  the  Circuit  Court  of  Cook  county, 
wherein  he  alleges  that  since  the  rendition  of  the  de- 
cree in  favor  of  Paris,  Allen  &  Co.,  on  the  twenty-first 
of  December,  1886,  against  Edward  G.  Asay^  and  after 
he  (McDonald)  had  paid  the  amount  thereof  to  the 
complainants  in  that  suit  he  had  learned  that  Edward 
G.  Asay,  on  or  about  the  sixteenth  of  May,  1885,  pur- 
chased the  lands  in  Ogle  county  upon  which  the  exe- 
cution was  levied,  but  caused  the  same  to  be  deeded 
to  Emma  0.  Asay  and  Margaret  I.  Asay,  instead  of 
to  himself,  for  the  fraudulent  purpose  of  hindering  his 
creditors,  and  preventing  Paris,  Allen  &  Co.  from  ob- 
taining satisfaction  of  any  decree  which  might  be  ren- 
dered in  their  favor  against  him.  McDonald  further 
alleges  in  his  bill  that  the  title  to  the  lands  levied 
upon  still  stands  in  the  names  of  Emma  0.  and  Mar- 
garet I.  Asay,  and  that  Edward  Asay  resides  thereon 
and  assumes  the  management  and  control  thereof;  that 
a  large  portion  of  the  money  held  by  said  Asay,  as 
assignee  of  Gage  &  Rice,  and  due  to  the  complainants 


254 

in  the  original  bill,  as  found  by  decree  therein,  was 
used  by  Edward  G.  Asay  in  the  purchase  of  said  prem- 
ises; and  the  levy  of  execution  on  said  premises  and 
filing  certificate  of  same  in  Ogle  county,  and  that  Ed- 
ward G.  Asay  has  no  personal  property  subject  to  le\y 
and  sale.  Edward  G.  Asay,  Emma  0.  Asay  and  Mar- 
garet I.  Asay  are  made  parties  defendant.  The  pray  er 
is  that  Edward  G.  Asay  may  set  forth  and  state  the 
circumstances  attending  the  conveyance  of  said  prem- 
ises to  said  Emma  0.  Asay  and  Margaret  I.  Asay,  how 
the  payments  were  made  and  from  whence  the  money 
was  derived,  and  that  he,  McDonald,  may  have  the 
same  relief  that  original  complainants  could  have.  To 
this  bill  the  defendants  interposed  the  plea  that  they 
were  all,  at  the  time  of  filing  the  supplemental  bill, 
residents  of  Ogle  county,  and  that  the  bill  does  not 
affect  the  title  to  real  estate  in  Cook  county,  where 
the  bill  was  filed.  McDonald  refused  to  reply  to  the 
plea,  and,  upon  hearing,  the  court  dismissed  the  bill. 
The  decree  of  the  Circuit  Court  was  affirmed  on  appeal 
to  the  Appellate  Court  for  the  First  District. 

The  contention  of  appellant  is,  that  this  being  a 
purely  supplemental  bill,  it  is  sufficient  that  the  Cook 
County  Circuit  Court  had  jurisdiction  of  the  original 
bill.  But  the  courts  below  held  (and  in  that  ruling 
we  concur)  that  this  is  not  a  purely  supplemental  bill, 
but  that  it  is  an  original  bill  in  the  nature  of  a  sup- 
plemental bill.  A  supplemental  bill  is  said  to  be  pro])- 
erly  applicable  only  to  cases  where  the  same  parties  in 
the  same  interests  remain  before  the  court.  (Story's 
Eq.  PL,  sec.  345.)  But  where  relief  of  a  different  kind, 
or  upon  a  diiferent  principle,  is  required  from  that  in 
the  original  decree,  an  original  bill  in  the  nature  of  a 
supplemental  bill  may  be  filed.  Story's  Eq.  PI,  sec. 
351b. 

No  relief  was  sought  in  the  original  bill  against 
Emma  0.  Asay  and  Margaret  I.  Asay,  and  they  were 
not  parties  to  that  bill,  and  it  is  palpable  that  whether 
those  individuals  are  entitled  to  hold  the  lands  in  con- 
troversy as  against  the  creditors  of  Edward  G.  Asay, 
must  depend  upon  entirely  different  evidence,  and  the 


255 

application  of  different  leg-al  principles  from  what  is 
required  under  the  original  hill. 

Under  the  facts  presented  by  the  plea,  only  an  orig- 
inal bill  in  the  nature  of  a  supplemental  bill  could  be 
filed,  and  that  should  have  been  in  Ogle  county,  where 
the  lands  sought  to  be  affected  lie  and  all  the  defend- 
ants reside. 

The  judgment  is  affirmed. 

Judgment  affirmed. 


ELZAS  V.  ELZAS, 

183  III.  132. 

(1899.) 

Mr.  Chief  Justice  Cartwright  delivered  the  opin- 
ion of  the  court. 

A  decree  was  entered  January  22,  1897,  in  the  Cir- 
cuit Court  of  Cook  county,  in  favor  of  appellee,  di- 
vorcing her  from  appellant  on  the  ground  of  deser- 
tion. Appellant  j^ rayed  an  appeal  from  that  decree, 
and  also  filed  his  petition  for  leave  to  file  a  bill  of  re- 
view on  the  ground  of  newly  discovered  evidence.  He 
did  nothing  further  with  his  petition  but  removed  the 
record  to  the  Appellate  Court,  where  the  decree  was 
affirmed.  He  then  took  a  further  appeal  to  this  court, 
and  the  judgment  of  the  Appellate  Court  was  affirmed 
by  this  court  February  14,  1898,  {Elzas  v.  Elzas,  111 
111.  632.)  After  such  final  affirmation  of  the  decree 
he  filed  in  the  Circuit  Court,  February  21,  1898,  a  sup- 
plement to  his  petition  and  asked  the  court  to  set 
aside  the  decree.  The  Circuit  Court  denied  his  peti- 
tion, and  he  prosecuted  an  appeal  from  that  order  to 
the  Appellate  Court,  where  it  was  affirmed,  and  he  now 
brings  the  case  made  by  the  petition  to  this  court  by 
a  further  appeal  from  the  Appellate  Court. 

Leave  to  file  a  bill  of  review  for  newly  discovered 
evidence  is  not  granted  as  a  matter  of  right,  but 
granting  or  refusing  such  leave  rests  in  the  sound 
discretion  of  the  court  to  which  the  application  is  made. 
The  newly  discovered  evidence  upon  which  the  court 


256 

is  asked  to  review,  and  reverse  the  former  decree  must 
not  be  cumulative,  and  must  be  of  important  and  de- 
cisive character,  if  not,  conclusive.  It  must  be  such 
as  would  apparently  have  produced  a  different  result 
had  it  been  known  and  brought  before  the  court. 
{Griggs  v.  Gear,  3  Gihn.  2;  Walker  v.  Douglas,  89  111. 
425.)  The  petition  will  not  be  granted  except  upon 
affidavit  satisfying  the  court  that  the  alleged  new  mat- 
ter was  not  known  to  the  petitioner,  and  could  not 
have  been  discovered  and  produced  or  used  by  him 
by  the  exercise  of  reasonable  diligence,  before  the  en- 
try of  the  decree  sought  to  be  reviewed.  The  newly 
discovered  evidence  must  be  distinctly  stated  and  the 
affidavits  of  witnesses  must  be  filed  in  support  of  the 
averment.  (Schaefer  v.  W under ele,  154  111.  577.) 
If  the  petitioner  has  been  negligent  in  discovering  and 
producing  the  evidence  at  the  former  hearing  his  neg- 
ligence will  bar  any  relief.  He  must  show  that  the 
evidence  was  such  that  with  the  use  of  reasonable  dili- 
gence he  could  not  have  known  of  it  before  the  hearing, 
and  the  general  rule  is,  that  evidence  which  tends  sim- 
ply to  impeach  testimony  given  on  the  hearing  will 
not  be  sufficient  to  sustain  a  bill  of  review.  {Boy den 
V.  Reed,  55  111.  458.)  When  the  petition  is  presented 
the  court  considers  its  statements  and  the  affidavits 
in  support  of  it,  and  the  record  in  the  original  case. 
The  court  then,  upon  looking  at  the  whole  case,  ex- 
ercises a  sound  judicial  discretion,  and  unless  such  dis- 
cretion has  been  abused  the  decision  will  not  be 
disturbed.  "The  true  rule  would  seem  to  be,  that 
unless  there  has  been  an  abuse  of  the  fair  discre- 
tionary power  with  which  the  Circuit  Court  has  been 
invested  in  the  matter  of  such  applications  its  de- 
cision should  not  be  disturbed."  Schaefer  v.  Wun- 
derle,  supra;  Stockley  v.  StocMey,  93  Mich.  307. 

Petitioner  met  the  charge  of  desertion  contained  in 
the  original  bill  with  a  denial  of  his  marriage  to  the 
complainant,  and  that  was  the  controverted  fact  in  the 
case.  There  is  no  new  evidence  offered  on  that  subject. 
There  is  an  affidavit  of  William  T.  Hall,  a  justice  of 
the  peace  of  Cook  county,  that  complainant  testified 


257 

in  a  suit  before  him  that  she  was  the  wife  of  petitioner 
and  was  married  by  a  marriage  ceremony.  She  was 
examined  on  that  subject  at  the  hearing  and  did  not 
deny  that  she  had  so  testified,  and  her  counsel  ad- 
mitted it.  The  justice  of  the  peace  lived  in  Chicago, 
where  the  hearing  took  place,  and  had  agreed  to  come 
on  a  telephone  message,  but  the  fact  that  complainant 
had  testified  as  claimed  having  been  admitted,  petition- 
er 's  solicitor  did  not  think  it  worth  while  to  telephone. 
The  birth  of  a  child  of  the  parties  at  Toronto  was 
alleged  in  the  bill  and  there  was  testimony  of  the  fact. 
One  of  the  grounds  of  the  petition  is  the  alleged  newly 
discovered  evidence  that  the  child  was  born  in  June 
instead  of  July,  1886,  and  was  registered  under  the 
name  of  Taylor.  The  supposed  evidence  does  not 
comply  with  the  above  rule  requiring  an  affidavit,  but 
consists  merely  of  a  telegram  signed  W.  Stark  and  di- 
rected to  W.  A.  Pinkerton,  and,  aside  from  its  not 
being  an  affidavit,  it  is  totally  insufficient  as  a  state- 
ment of  any  fact.  If  there  was  a  registry  of  births  in 
Toronto,  petitioner  does  not  show  the  slightest  cause 
for  not  ascertaining  what  it  was  and  bringing  it  be- 
fore the  court  in  a  proper  form.  On  the  hearing,  com- 
plainant testified  that  petitioner  gave  her  his  photo- 
graph, and  the  petition  alleges  that  the  photograph 
was  made  at  a  later  date  and  that  it  was  taken  from 
petitioner's  trunk  at  a  hotel  in  Chicago.  He  testified 
in  the  same  way  at  the  hearing,  and  the  evidence  was 
merely  cumulative  and  neither  important  or  decisive 
in  character.  Again,  there  is  an  affidavit  of  Joseph 
F.  Ullman  that  complainant  was  not  introduced  to 
him  and  his  wife  as  petitioner's  wife,  as  complainant 
testified  on  the  hearing.  That  evidence  is  cumulative, 
and  it  is  not  denied  that  Ullman  wrote  a  letter  to 
complainant,  which  was  in  evidence  on  the  hearing,  ad- 
dressing her  as  petitioner's  wife  and  enclosing 
money  at  the  request  of  petitioner.  The  evidence,  if 
produced,  would  be  of  little  consequence  in  view  of 
such  fact. 

The  remaining  ground  upon  which  petitioner  asked 
the  court  to  review  and  reverse  the  decree  was  that 


258 

complainant  had  been  guilty  of  adultery  during  the 
marriage.  That  defense  to  the  bill  was  not  set  up  by 
the  petitioner  nor  made  an  issue  in  the  case  in  any 
manner,  and  the  rule  is  that  the  newly  discovered  evi- 
dence must  be  such  as  relates  to  a  matter  in  issue 
on  the  hearing — not  evidence  to  make  a  new  case,  but 
to  establish  the  old  one.  {Boy den  v.  Reed,  supra.) 
Aside  from  that  rule,  the  petition  fails  to  comply  with 
the  requirement  of  showing  that  petitioner  could  not 
have  discovered  the  testimony,  by  the  use  of  reason- 
able diligence,  in  time  for  the  hearing.  The  bill  was 
filed  September  11,  1896, — more  than  four  months  be- 
fore the  hearing.  He  was  served  with  process  and 
appeared  and  filed  his  answer.  He  had  ample  time 
to  hunt  up  any  defense  that  he  might  have  had.  He 
was  not  hindered  in  any  manner  from  making  any  in- 
vestigation of  the  life  or  associations  of  his  wife  that 
he  saw  fit.  The  source  of  the  alleged  new  evidence 
is  two  abandoned  women  with  whom  the  petitioner 
was  well  acquainted.  One  of  them  was  the  woman 
whose  house  he  had  frequented,  where  the  complain- 
ant lived  before  the  marriage.  The  other  one  had  en- 
trusted her  two  children  to  the  complainant  about  two 
years  before  the  hearing,  and  she  had  boarded  and 
cared  for  them  one  year  and  the  witness  had  fre- 
quently visited  them.  These  women  lived  in  Chicago 
and  were  known  to  the  petitioner,  and  were  persons 
of  whom  he  would  naturally  make  inquiries  touching 
his  alleged  defense.  The  avenues  of  information  were 
open  to  him  as  fully  during  the  four  months  before 
the  trial  as  afterward.  He  says  in  his  petition  that  he 
was  surprised  at  the  testimony  of  a  common  law  mar- 
riage at  the  hearing,  but,  if  so,  no  application  for  a 
continuance  was  made.  No  excuse  whatever  is  of- 
fered for  having  hunted  up  this  alleged  defense  after 
the  hearing  instead  of  before,  nor  any  explanation 
given  that  would  excuse  him. 

The  petition  does  not  show  any  sufficient  reason  for 
granting  leave  to  file  a  bill  of  review  or  for  opening 
the  decree.  This  is  the  necessary  conclusion  from 
the  petition  and  the  affidavits  filed  in  support  of  it,  in 


259 

connection  with  the  record  in  the  original  case,  with- 
out considering  the  affidavits  contradicting  the  newly- 
discovered  evidence.  Whether  the  filing  of  such  affi- 
davits was  proper  we  need  not  consider. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affinned. 


McCLINTOCK  v.   HELBERG, 

168  111.  324. 

(1897.) 

Me.  Justice  Magruder  delivered  the  opinion  of  the 
court. 

This  court  has  decided  that  appellee  was  entitled  to 
the  relief  prayed  for  in  the  original  bill,  that  is  to  say, 
that  he  was  entitled  to  have  paid  to  him  by  appellant 
the  $750.00  of  purchase  money,  and  to  have  trans- 
ferred to  him  said  note  for  $3,690.00  and  the  trust 
deed  securing  the  same.  The  question  then  arises, 
whether  the  facts  set  up  in  the  supplemental  answer 
constitute  a  defense  against  the  granting  of  the  relief 
prayed  for  in  the  bill.  Appellant  contends,  that  ap- 
pellee released  his  right  to  the  $750.00  and  to  the 
note  for  $3,690.00  by  accepting  the  bond  for  $4,500.00 
Appellee  claims  that  the  bond  never  was  accepted 
as  a  release  or  discharge  of  appellant  from  his 
liability  to  pay  the  $750.00  and  the  note  of  $3,690.00 
to  appellee.  Upon  this  question  of  fact  there 
is  a  sharp  conflict  in  the  testimony.  The  testi- 
mony of  appellee  tends  to  show,  that  the  consideration, 
for  which  the  bond  was  given,  was  merely  that  ap- 
pellee should  take  no  steps  to  apply  to  the  Appellate 
Court  for  a  continuance  of  the  injunction;  and  that 
neither  appellee,  nor  his  solicitor,  ever  intended  to 
release  appellant  from  his  obligation  to  pay  the  note 
and  money  to  appellee,  or  ever  intended  that  the  note 
should  be  paid  to  the  defendant,  Hartman.  Upon  this 
question  of  fact  the  lower  courts  have  decided  in  favor 
of  appellee.  After  a  careful  examination  of  the  evi- 
dence we  are  unable  to  say  that  finding  of  the  lower 


260 

courts  is  against  the  weight  of  evidence,  and  therefore 
decline  to  disturb  it. 

The  bond  was  never  delivered  to  the  appellee.  It 
was  executed  and  handed  to  appellee's  solicitor  before 
appellee  knew  anything  about  it.  It  was  some  time 
after  the  delivery  of  the  bond  to  his  solicitor  before 
appelle  knew  that  any  such  bond  had  been  executed  or 
delivered  to  his  solicitor.  None  of  the  transactions 
in  reference  to  the  bond  took  place  between  any  of  the 
defendants  and  appellee,  but  only  between  the  de- 
fendant, Hartman,  or  his  solicitor,  and  appellee's 
solicitor.  Appellee's  solicitor  told  him  a  few  days 
after  the  execution  of  the  bond,  that  such  a  bond  had 
been  executed,  but,  in  connection  with  this  statement, 
he  told  appellee  that  it  was  not  necessary  to  continue 
the  injunction  in  the  Appellate  Court,  as  the  note  was 
overdue,  and  the  pendency  of  the  suit  was  a  sufficient 
protection.  He  told  appellee,  that  the  solicitor  on  the 
other  side  had  left  the  bond  with  him,  and  that  he  did 
not  know  whether  it  was  of  any  account  or  not,  but 
that  he  considered  it  an  additional  security;  and  that 
appellee  had  lost  nothing  by  its  delivery,  but  had 
gained  a  point.  Appellee's  solicitor  swears,  that  he  did 
not  tell  Helberg  that  appellant  was  released  by  the 
taking  of  the  bond,  or  that  anybody  was  released  or 
discharged  thereby.  It  is  furthermore  established  by 
the  testimony,  that,  before  Mrs.  Hartman  began  suit 
against  appellant  upon  the  note,  appellant  caused 
application  to  be  made  to  appellee  to  release  some  of 
the  property  covered  by  the  trust  deed  and  appellee 
declined  to  do  so. 

There  is  no  evidence  whatever  in  the  record,  that 
appellee  ever  authorized  his  solicitor  to  accept  this 
bond  as  a  substitute  for  the  liability  of  appellant  to 
pay  the  $750.00  to  appellee,  and  to  pay  to  appellee 
the  amount  due  on  the  note  for  $3,690.00.  Further- 
more, there  is  no  evidence  in  the  record,  which  at  all 
establishes  the  fact,  that  appellee  ratified,  or  in  any 
way  approved,  of  the  taking  of  said  bond  as  a  substi- 
tute for  such  liability,  and  as  a  release  of  appellant, 


261 

even  if  his  solicitor  had  agreed  to  take  it  as  such  sub- 
stitute or  as  such  release. 

An  attorney  has  no  authority,  by  reason  of  his  gen- 
eral retainer  in  a  suit,  to  discharge  a  debtor  to  his 
client,  or  to  accept  anything  other  than  money  in 
payment  of  his  client's  debt.  He  must  have  special 
authority  from  his  client  to  settle  a  debt  due  to  the  cli- 
ent otherwise  than  by  the  payment  of  money.  (Trum- 
bull V.  Nicholson,  27  111.  149;  Nolan  v.  Jackson,  16  id. 
272 ;  Wetherbee  v.  Fitch,  117  id.  67.)  An  attorney  has 
no  power,  without  express  authority,  to  bind  his  cli- 
ent by  a  compromise  of  a  pending  suit,  or  other  mat- 
ter, intrusted  to  his  care.  An  executory  agreement  to 
compromise  a  suit,  made  by  an  attorney,  does  not  bind 
the  client,  unless  the  latter  ratifies  such  agreement 
after  full  knowledge  of  all  the  facts.  The  attorney 
has  no  implied  authority  to  compromise  his  client's 
claim  or  to  release  his  client's  cause  of  action.  He 
cannot  bind  his  client  by  any  act,  which  amounts  to 
a  surrender,  in  whole  or  in  part,  of  any  substantial 
right.  He  cannot  commute  a  debt,  or  materially 
change  the  security,  which  his  client  may  have,  with- 
out his  consent;  nor  has  he  the  power  to  assign  or 
sell  a  claim  or  judgment  of  his  client  without  special 
authority.  (3  Am.  &  Eng.  Ency.  of  Law,  2nd  ed.  pp. 
358-360,  363;  Mechem  on  Agency,  sec.  813;  2  Green- 
leaf  on  Evidence,  sec.  141 ;  Penniman  v.  Pat  chin,  5  Vt. 
346;  Benedict  v.  Smith,  10  Paige,  126;  Smock  v.  Dale, 
5  Rand.  639;  Wilso{ti  v.  Wadleigh,  36  Me.  496;  Chap- 
man v.  Cowles,  41  Ala.  103;  Wadhams  v.  Gay,  73  111. 
415).  Where  an  attorney,  in  making  an  agreement 
with  the  opposite  party,  compromises  a  claim  for  less 
than  the  amount  due,  or  takes  security  of  less  value 
than  that  which  already  secures  the  claim,  or  accepts 
anything  other  than  money  in  payment  of  the  claim, 
such  party  is  put  upon  inquiry  as  to  the  attorney's 
authority  to  make  such  compromise  or  settlement;  and 
if  he  omits  to  make  inquiry,  or  to  demand  the  produc- 
tion of  the  authority,  he  deals  with  the  attorney  at 
his  peril.  (Brooks  v.  Kearns,  86  111.  547;  Miller  v. 
Lane,  13  111.  App.  648;  Weeks  on  Attorneys,  sec.  240; 


262 

Wharton  on  Agency,  sees.  580-583;  Campbell's  Ap- 
peal, 29  Pa.  St.  401.) 

In  the  case  at  bar,  appellant  charges,  that  appel- 
lee's solicitor  surrendered  a  claim  for  $750.00  against 
appellant  who  was  a  responsible  party,  and  a  note  for 
$3,690.00  secured  by  a  trust  deed  upon  land  which  was 
worth  much  more  than  the  amount  of  the  note  in  ex- 
change for  a  bond  which  was,  to  say  the  least,  of  very 
doubtful  value.  The  transactions  in  regard  to  the 
bond  were  made  out  of  court  and  were  not  a  part  of 
the  record  in  the  pending  suit.  Appellant  was  bound 
to  know,  that  appellee's  solicitor  had  no  right  to  make 
any  such  surrender  without  special  authority  from 
appellee.  Appellant  should,  therefore,  have  inquired 
as  to  the  authority  of  the  solicitor  to  make  the  ar- 
rangement; and,  after  it  was  made,  it  was  his  duty 
to  inquire  whether  or  not  it  had  been  ratified  and  ac- 
cepted by  appellee.  When  he  applied  to  appellee  for 
a  release  of  the  property  covered  by  the  trust  deed 
and  was  met  with  a  refusal,  he  was  put  upon  his 
guard  and  was  virtually  informed  that  appellee  had 
not  accepted  the  bond  as  a  release  of  his  liability.  In 
addition  to  this,  it  is  in  proof,  that,  when  appellant 
was  sued  upon  the  note  by  Mrs.  Hartman,  appellee's 
solicitor  advised  him  to  defend  against  the  suit,  upon 
the  ground  that,  if  he  paid  the  note  to  Mrs.  Hartman, 
he  might  be  obliged  to  pay  it  again  to  appellee. 

Moreover,  if  appellee's  solicitor  surrendered  this 
note  and  trust  deed  in  exchange  for  this  bond,  the  for- 
mer was  a  security  so  much  more  valuable  than  the 
latter,  as  to  render  such  solicitor  liable  to  the  charge 
of  bad  faith.  It  is  a  well-settled  rule,  that  agree- 
ments by  an  attorney  which  are  so  unreasonable  as 
to  imply  bad  faith,  will  operate  as  notice  of  such  bad 
faith  to  the  opposite  side,  and  will  have  no  binding 
effect  upon  the  client.  {Ball  v.  Leonard,  24  111.  146; 
Weeks  on  Attorneys,  sec.  220). 

It  is  not  altogether  clear  that  the  note  sued  upon  by 
Mrs.  Hartman  was  actually  paid  by  appellant.  The 
suit  brought  upon  the  note  could  have  been  defended 
by  appellant.     The  note  was  never  in  the  possession 


263 

of  Mrs.  Hartman,  and  the  suit,  though  brought  in  the 
name  of  Mrs.  Hartman,  was  really  a  suit  by  Hartman 
himself.  Appellant  was  advised  by  his  own  attorney, 
that  he  had  a  good  defense  to  the  suit.  It  appears 
that  appellant  had  some  claims  against  Hartman 
growing  out  of  old  transactions.  Hartman  had  sold 
some  property  for  him,  and  failed  to  pay  over  some 
of  the  money  due  on  account  of  such  sale.  The  larger 
part  of  the  payments  made  upon  the  note  consisted 
of  an  application  upon  the  note  of  these  old  claims 
against  Hartman.  There  was  thus  an  inducement  on 
the  part  of  appellant  to  regard  Hartman  as  the  owner 
of  the  note,  in  order  that,  by  such  apiDlication,  he  could 
secure  payment  of  these  other  claims.  Certainly  he 
well  knew  that  the  note  and  trust  deed  were  claimed, 
on  the  one  side  by  appellee,  and  on  the  other  by  Hart- 
man. He  owed  the  debt  due  upon  the  note,  and  has 
never  been  disposed,  so  far  as  we  can  discover,  to  deny 
his  obligation  to  pay  the  note  to  somebody.  When, 
therefore,  appellee  was  seeking  to  recover  the  note  by 
the  chancery  suit,  and  Mrs.  Hartman  was  seeking  to 
recover  the  amount  due  upon  the  note  by  a  suit  at  law, 
he  should  have  filed  a  bill  of  interpleader  instead  of 
paying  the  note  to  Mrs.  Hartman.  He  would  thereby 
have  protected  himself.  He  had  a  right  to  file  a  bill 
of  interpleader  under  the  circumstances  stated.  {Ryan 
v.  Lamson,  153  111.  520;  National  Live  Stock  Bank  v. 
Platte  Valley  State  Bank,  54  111.  App.  483;  Curtis  v. 
Williams,  35  id.  518;  Livingstone  v.  Bank  of  Montreal, 
50  id.  562.) 

When  appellant  paid  the  note  to  Mrs.  Hartman,  if 
he  paid  it,  the  present  suit  was  pending,  and  he  and 
Hartman  and  Kuhns  and  Kintz  and  all  the  agents 
were  parties  to  that  suit.  He  thus  had  full  notice  of 
the  claim  of  appellee,  and  was  aware  of  the  fact  that 
appellee  was  prosecuting  the  suit  in  the  Appellate 
Court  and  in  this  court. 

It  is  undoul)tedly  a  hardship  upon  a]ipellant  to  pay 
the  $750.00  and  the  note  to  appellee,  if  he  has  already 
paid  them  to  Hartman  or  his  wife,  but,  in  view  of 
the  circumstances  already  stated,  and  for  the  reasons 


264 

already  given,  he  has  no  equity  in  the  matter  which 
is  superior  to  the  equity  of  appellee. 

Accordingly  the  judgment  of  the  Appellate  Court 
is  affirmed. 

Judgment  affirmed. 


LLOYD    V.    KIRKWOOD, 

112  111.  329. 

(1884.) 

Mk.  Justice  Mulkey  delivered  the  opinion  of  the 
court. 

The  United  States  on  the  first  day  of  May,  1849,  is- 
sued a  patent  to  Thomas  A.  Speers  for  the  southeast 
quarter  of  the  northwest  quarter  of  section  17^  town  37, 
north,  range  15,  east,  in  Cook  county,  this  state. 
Speers  died  intestate,  in  1855,  leaving  Josephine 
Speers,  an  only  child  and  heir,  who  afterwards  inter- 
married with  Sidney  P.  Walker.  Josephine  Speers 
Walker  died  in  November,  1864,  leaving  Sidney  P. 
Walker,  her  husband,  and  Mary  Louise  Walker,  her 
only  child  and  heir  at  law,  the  latter  being  then  an  in- 
fant, about  ten  months  old.  On  the  thirty-first  of 
January,  1874,  Samuel  Ray  filed  in  the  Cirucit  Court 
of  Cook  county  a  bill  in  chancery,  against  the  said 
Mary  Louise  Walker,  to  esta1)lish  an  alleged  resulting 
trust  to  an  undivided  two-thirds  of  the  land,  and  to 
compel  a  conveyance  of  the  legal  title  thereto,  she  be- 
ing then  about  ten  years  of  age.  The  bill  set  forth, 
in  substance,  that  although  the  purchase  of  the  land 
from  the  United  States  was  in  the  name  of  Speers, 
alone,  yet,  as  a  matter  of  fact,  it  was  made  by  the  said 
Samuel  Ray,  Martin  G.  Taylor  and  the  said  Thomas 
A.  Speers,  who,  respectively,  advanced  one-third  of 
the  money  paid  to  the  government  therefor,  and  that 
as  to  the  two-thirds  of  the  land  thus  purchased  by  Ray 
and  Taylor,  Speers  was  a  mere  trustee.  The  bill  fur- 
ther showed  that  Ray,  about  the  first  of  May,  1850, 
purchased  of  Taylor  his  third  interest  in  the  property 
paying  him  for  it  at  the  time,  and  that  in  pursuance 


265 

of  such  purchase  Taylor  conveyed  the  same  to  him, 
by  quitclaim  deed,  on  the  twenty-third  of  June,  1873, 
The  bill  prayed  that  Ray  might  be  decreed  to  be  the 
equitable  owner  of  said  two-thirds  of  the  land,  and 
that  a  commissioner  be  appointed,  with  directions  to 
convey  to  him  the  legal  title  thereto.  A  decree  in  con- 
formity with  the  prayer  of  the  bill  was  entered  on  the 
twenty-first  of  July  1877,  in  pursuance  of  which  Wal- 
ter Butler,  as  special  commissioner,  by  deed  dated 
March  5,  1878,  conveyed  to  said  Ray  an  undivided  two- 
thirds  of  said  land.  Ray  died  January  23,  1880,  leav- 
ing a  will,  by  which  he  gave  to  his  widow,  Esther  Ray 
one-third,  and  the  residue  to  Sarah  J.  Mann,  Harriet 
E.  Smith  and  Josephine  Kleinman.  Alice  R.  Kirk- 
wood,  subsequently,  through  mesne  conveyances,  ac- 
quired the  interest  of  Esther  Ray  by  purchase,  pay- 
ing a  valuable  consideration  therefor. 

Such  being  the  condition  of  the  property  with  re- 
spect to  its  ownership,  Alice  R.  Kirkwood  and  Sarah 
J.  Mann,  with  their  respective  husbands,  Edwin  C. 
Kirkwood  and  Bill  Mann,  on  the  thirtieth  of  March, 
1882,  filed  in  the  Circuit  Court  of  Cook  county  a  bill 
for  the  partition  of  said  land,  making  Mary  Louise 
and  Sidney  P.  Walker,  and  Harriet  E.  Smith  and  Jo- 
sephine Kleinman,  and  their  respective  husbands,  de- 
fendants to  the  bill.  There  were  other  defendants  to 
bill,  whose  interests  are  collateral  to  the  main  ques- 
tions involved  in  the  case,  and  therefore  require  no 
special  notice.  The  bill  thus  filed  set  up  the  former 
decree  and  proceedings  thereunder,  and  charged,  in 
detail,  the  facts  above  stated.  Mary  Louise  Walker 
appeared  and  answered  the  bill,  and  also  filed  a  cross- 
bill, in  which  she  charges,  in  substance,  that  the  land 
in  controversy  was  purchased  and  paid  for  exclusively 
by  her  grandfather,  Thomas  A.  Speers,  and  that 
neither  Tayor  nor  Ray  now  has,  or  ever  had,  any  in- 
terest in  the  land  or  any  connection  with  its  purchase, 
and  that  she  is  now  the  sole  and  exclusive  owner  there- 
of, as  the  heir  of  her  deceased  mother.  In  short,  by 
her  said  cross-bill  she  negatives  all  the  material  alle- 
gations in  the  bill  filed  by  Ray  against  her,  as  above 


266 

set  forth,  and  in  addition  thereto  charges,  in  sub- 
stance, that  at  the  time  of  the  alleged  proceeding  she 
was  but  a  little  child,  only  ten  years  of  age,  and  unable 
to  comprehend  the  nature  of  it,  but  that  the  file;-;  of 
the  suit  show  that  one  Joseph  L.  Wilson,  a  deputy 
clerk  of  the  court,  appointed  on  the  suggestion  of  com- 
plainant's solicitor,  appeared  for  her  as  guardian  ad 
litem,  and  as  such  filed  an  answer  on  her  behalf,  pre- 
pared by  complainant's  said  solicitor;  that  Sidney  P. 
Walker  also  filed  an  answer  in  his  own  right,  and  as 
guardian  of  his  daughter,  the  said  Mary  Louise,  set- 
ting up  their  respective  interests  in  the  land,  and  dis- 
claiming all  knowledge  of  the  alleged  equities  of  the 
complainant  in  that  bill.  To  this  answer  there  was  a 
replication,  but  none  to  the  answer  of  Wilson,  as 
guardian  ad  litem. 

After  setting  out  the  decree  in  that  suit  to  the  ef- 
fect heretofore  stated,  and  certain  irregularities  in 
taking  and  certifying  certain  depositions,  the  cross- 
bill then  proceeds  to  charge  as  follows:  "It  appears 
by  said  record  that  said  Samuel  Ray  was  of  sufficient 
capacity  to  maintain  his  suit  in  1849  and  1850;  that 
he  then  knew  of  all  claims  and  causes  of  action  or  suit 
set  out  or  claimed  in  said  bill  by  him  exhibited  in 
1874;  that  no  reason  existed  why  he  should  not  have 
brought  such  suit  at  any  time  after  the  said  pretended 
claims  arose,  if  any  such  claims  or  rights  ever  exisr.ed, 
and  the  failure  to  bring  such  suit,  or  to  demand  the 
declaration  of  such  trust  and  confidence,  as  is  alleged 
in  said  bill  for  the  period  of  twenty-five  years,  is  con- 
clusive evidence  that  no  such  claims,  trusts  or  con- 
fidences ever  existed,  and  the  laches  and  delay  in 
bringing  suit  on  said  pretended  claim  barred  all  suit 
thereon,  and  wotild  have  barred  the  best  and  most  per- 
fect claim,  rendering  it  the  duty  of  the  court  to  dis- 
miss the  bill."  The  cross-bill  then  charges,  in  sub- 
stance, that  complainant's  interests  were  not  pro- 
tected in  said  former  suit;  "that  said  Wilson  (the 
guardian  ad  litem)  took  no  part  in  taking  any  evi- 
dence, or  in  any  proceeding  or  in  the  hearing  of  said 
cause,  nor  did  any  person  in  any  manner  act  for  him ; 


267 

*  *  *  that  no  evidence  was  given  or  received  in  said 
cause  that  was  admissible  against  jouv  oratrix."  It 
further  appears,  from  the  cross-bill,  that  Ray  himself 
was  examined  orally  in  court  against  her,  and  that 
certain  depositions  were  read  against  her  on  the  hear- 
ing, which  are  claimed  to  be  obnoxious  to  various  ob"- 
jections,  particularly  specified,  requiring  their  sup- 
pression, about  which,  in  the  view  we  take  of  the  case, 
it  is  not  necessary  to  express  any  opinion. 

To  the  cross-bill  thus  framed  the  court  sustained  a 
demurrer,  and  entered  an  order  dismissing  the  same. 
On  the  day  previous  to  the  entry  of  this  order,  to  wit, 
the  twenty-fourth  of  January,  1884,  the  death  of  Sid- 
ney P.  Walker  was  suggested,  he  having  died  pending 
the  suit.  The  cause  proceeded  to  a  hearing  on  the  orig- 
inal bill,  and  a  final  decree  was  entered  therein  on 
March  1  following,  directing  a  partition  of  the  prem- 
ises in  conformity  with  the  prayer  of  the  bill,  from 
which  decree  complainant  in  the  cross-bill  prayed  an 
appeal  to  this  court.  On  the  fourteenth  of  the  month 
her  intermarriage  with  L.  H.  Lloyd,  was  suggested  of 
record,  who  joins  her  in  this  appeal. 

Assuming  appellant  is  entitled  to  relief  against  the 
decree  of  1874,  by  a  bill  of  review,  or  by  an  original 
bill  in  the  nature  of  a  bill  of  review,  we  perceive  no 
force  in  the  claim  that  the  cross-bill  in  this  case  is  not 
germane  to  the  original  bill,  and  that  for  that  reason 
it  was  properly  dismissed.  If,  as  a  matter  of  law,  she 
was  entitled  to  have  the  decree  upon  which  appellees 
base  their  right  to  petition  to  set  aside  and  annulled, 
on  a  bill  filed  by  her  for  that  purpose,  most  assuredly 
such  right  in  her  is  appropriate  matter  for  a  cross-bill 
to  an  original  bill  filed  by  them  for  the  express  pur- 
pose of  enforcing  such  partition. 

The  question  is  then  presented,  whether  the  decree 
of  1874  can  be  successfully  assailed  by  a  bill  of  either 
character  indicated.  The  authorities  are  univers- 
ally agreed  that  a  decree  against  an  infant  may  be  so 
attacked  for  fraud,  and  this  is  conceded  by  appellees; 
but  they  are  not  so  agreed  where  the  decree  or  judg- 
ment is  assailed  for  error  merely.  Upon  this  proposi- 


268 

tion  there  is  considerable  diversity  of  opinion.  By  the 
law  as  it  is  judicially  declared  in  England  and  in  many 
of  the  states  here,  a  decree  against  an  infant  is  not  ab- 
solute in  the  first  instance.  It  is  binding  sub  modo 
only.  On  becoming  of  age  he  is  entitled  to  his  day  in 
court  to  show  cause  against  the  decree,  and  his  right 
to  do  so  must  be  expressly  reserved  by  the  decree  it- 
self, otherwise  it  will  be  erroneous,  and  subject  to  be 
reversed  and  set  aside.  In  many  of  the  states,  however, 
including  our  own,  a  decree  against  an  infant,  like  that 
against  an  adult,  is  absolute  in  the  first  instance,  sub- 
ject to  the  right  to  attack  it  by  original  bill,  for  either 
fraud  or  error,  merely;  but  until  so  attacked,  and  set 
aside  or  reversed,  on  error  or  appeal,  it  is  binding  to 
the  same  extent  as  any  other  decree  or  judgment. 
This  right  to  attack  a  decree  by  original  bill  may  be 
exercised  at  any  time  before  the  infant  attains  his 
majority,  or  at  any  time  afterwards  within  the  period 
in  which  he  may,  under  the  statute,  prosecute  a  writ 
of  error  for  the  reversal  of  such  decree.  {Kuchen- 
beiser  et  al.  v.  Beckert,  41  111.  172.)  In  this  case,  which 
was  a  bill  to  impeach  and  set  aside  a  decree  against 
an  infant,  the  rule  as  above  stated  is  expressly  laid 
down,  and  has  been  followed  in  subsequent  cases.  The 
rule  thus  established  is,  of  course,  subject  to  the  quali- 
fication that  the  decree  of  a  court  having  jurisdiction 
of  the  subject-matter  of  the  suit  and  the  person  of  the 
infant  against  whom  it  is  rendered,  will  not  be  thus 
set  aside  as  against  third  parties  who  have  in  good 
faith  acquired  rights  under  it ;  but  as  against  original 
parties  to  the  suit,  and  their  legal  representatives,  the 
rule  as  above  stated  will  be  enforced.  Freeman  on 
Judgments,  sec.  513. 

In  Lloyd  et  al.  v.  Malone  et  al.,  23  111.  43,  this  court, 
after  citing  Richmond  et  iix.  v.  Tayleur,  1  P.  Wms. 
734,  and  other  English  cases,  together  with  the  rules  as 
laid  down  in  Mitford's  Chancery  Pleadings,  sec.  113, 
in  support  of  the  position  that  an  original  bill  will  lie 
to  impeach  a  decree  against  an  infant  for  mere  error, 
and  after  citing  certain  cases  in  New  York,  Kentucky 
and  Ohio,  where  the  right  to  file  such  bill  is  limited 


269 

to  cases  of  fraud,  proceeds  to  say:  ''We  are  inclined 
to  go  to  the  extent  of  the  rulings  of  the  English  courts, 
and  not  confine  the  right  to  cases  where  fraud  has  in- 
tervened to  obtain  a  decree  against  infants,  *  *  * 
The  interests  of  infants  are  the  peculiar  care  of  courts, 
and  if  their  ights  have  been  outraged  and  disregarded 
by  an  unfaithful  guardian,  the  courts  should  not  be 
slow  to  apply  a  remedy." 

The  rule  here  adopted  upon  a  deliberate  considera- 
tion of  the  authorities  on  both  sides  of  the  question, 
has  been  frequently  recognized  by  this  court,  and 
whatever  the  rule  may  be  elsewhere,  it  must  be  re- 
garded as  settled  in  this  state.  (Kuchenbeiser  et  al. 
v.  Beckert,  supra.)  Whenever  the  property  rights  of 
an  infant  are  drawn  into  litigation,  and  the  infant 
himself,  whether  as  plaintiff  or  defendant,  has  been 
brought  into  court,  he  at  once  becomes  the  ward  of 
the  court,  and  as  such  it  is  the  duty  of  the  court 
to  see  that  his  rights,  as  such  are  properly  pro- 
tected. If,  having  a  legally  appointed  guardian, 
such  guardian  does  not  appear  to  the  action  for 
the  purpose  of  managing  his  suit,  it  is  the  duty  of 
the  court  to  appoint  a  guardian  ad  litem  to  perform 
that  duty.  If  the  guardian  who  undertakes  the  per- 
formance of  this  trust,  whether  he  be  the  general 
guardian,  or  merely  a  guardian  ad  litem  fails  to  prop- 
erly protect  the  interests  of  the  ward,  it  is  the  duty 
of  the  court,  sua  sponte,  to  compel  him  to  do  so  when- 
ever the  fact  in  any  manner  is  brought  to  the  notice 
of  the  court.  If,  for  instance,  the  infant  is  defending 
and  his  guardian  has  failed  to  file  some  pleading  es- 
sential to  the  admission  of  his  defense,  or  has  filed  one 
so  imperfect  as  not  to  be  sufficient  for  that  purpose, 
it  is  the  duty  of  the  court,  whenever  the  fact  is  dis- 
closed, to  see  that  the  proper  pleading  is  filed  on  be- 
half of  the  infant  before  proceeding.  These  general 
propositions  are  so  well  settled  and  understood  that 
they  will  hardly  be  controverted.  Looking  at  the  rec- 
ord before  us  in  the  light  of  these  well  recognized  prin- 
ciples, and  the  authorities  heretofore  cited,  we  think 
there  can  be  but  little,  if  any,  doubt  that  the  cross-bill 


270 

showed  such  a  state  of  facts  as  entitled  the  complain- 
ant to  relief. 

Passing  over  all  other  matters  set  up  in  the  cross- 
bill, without  expressing  any  opinion  upon  them  the 
one  way  or  the  other,  and  coming  at  once  to  the  ques- 
tion of  delay  in  filing  the  bill  of  1874  to  establish  and 
enforce  the  alleged  trust,  we  have  no  hesitancy  in  hold- 
ing that  under  the  circumstances,  as  shown  by  the 
record,  a  delay  of  some  twenty-five  years,  as  was  the 
case  there  before  attempting  to  enforce  the  trust,  af- 
forded a  complete  defense  to  the  bill,  and  this  fact  be- 
ing apparent  upon  the  face  of  the  bill,  the  court  should 
not  have  permitted  the  decree  to  have  passed  as 
against  an  infant.  The  land  in  question,  during  these 
twenty-five  years,  was  in  the  actual  possession  of  no 
one.  The  legal  title,  and,  so  far  as  the  record  showed, 
the  equitable  title  also,  was,  during  this  entire  period, 
in  the  appellant's  grandfather  or  his  lineal  descend- 
ants, and  he  and  they,  for  the  same  period,  were  in 
the  constructive  possession  of  the  premises.  No  rea- 
son is  assigned  why  this  suit  was  not  brought  in 
Speers'  lifetime,  nor  do  we,  from  the  record,  perceive 
any.  The  parties  in  interest  not  only  waited  until  his 
mouth  was  forever  closed  by  death,  so  that  it  was  im- 
possible for  him  to  give  his  version  of  the  transaction, 
but  waited  until  the  mother  of  appellant  had  also  died 
who  may  possibly  have  known  of  the  purchase,  and 
might  have  testified  with  respect  to  it  had  the  suit 
been  brought  even  in  her  lifetime  and  while  the  title 
was  in  her;  but  the  suit  was  deferred  until  she  died, 
also,  thus  making  two  descents  cast,  and  a  lapse  of 
twenty-five  years  from  the  time  it  might  have  been 
brought  till  the  day  it  was  actually  commenced. 

To  the  suggestion  that  there  was  no  adverse  holding 
on  the  part  of  appellant  or  her  ancestors,  we  do  not 
think,  under  the  circumstances  of  the  case,  there  is 
much  force  in  it.  If  one  having  a  claim  of  this  kind 
to  vacant  and  unoccupied  land,  resting  solely  upon 
the  mere  memory  of  witnesses,  unaided  by  any  docu- 
mentary proof,  as  was  the  case  here,  may  lie  by  for 
some  twenty-five  years,  and  until  all  the  parties  on 


271 

one  side  of  the  alleged  transaction  are  dead,  and  then 
maintain  a  bill  of  this  kind  against  an  infant  repre- 
sentative of  such  deceased  parties,  it  may  be  safely 
said  that  no  owner  of  land  so  long  vacant  as  this  was,  is 
safe. 

To  the  further  suggestion  that  this  defense  should 
have  been  set  up  by  answer,  it  is  sufficient  to  repeat 
what  has  already  been  said,  that  the  delay  in  suing 
was  a  fact  apparent  upon  the  face  of  the  bill;  and  con- 
ceding it  should  have  been  set  up  by  waj^  of  answer, 
it  was  the  duty  of  the  court  to  have  required  such 
an  answer  to  be  put  in,  and  the  failure  to  do  so  would 
have  been  error.  But  we  hold  the  rule  suggested  can 
have  no  aj)plication  to  an  infant  who  is  the  ward  of 
the  court,  as  appellant  was.  In  connection  with  this 
case  we  refer  to  Walker  v.  Ray,  111  111.  315,  decided 
upon  substantially  the  same  state  of  facts. 

The  decree  of  the  court  below,  for  the  error  indi- 
cated, will  have  to  be  reversed,  and  the  cause  remanded 
for  further  proceedings  in  conformity  with  this 
opinion. 

Decree  reversed. 


SHIELDS  V.  BUSH, 
189  in.  534. 
(1901.) 

Mr.  Justice  Magruder  delivered  the  opinion  of  the 
court. 

Third — It  is  claimed  that  the  decree  in  this  case  is 
erroneous  upon  the  alleged  ground,  that  it  grants  af- 
firmative relief  to  the  defendants  upon  their  answers, 
and  without  the  filing  of  a  cross-bill.  The  contention 
of  the  appellant  is,  that  the  Circuit  Court  should 
have  rendered  a  decree,  dismissing  the  appellant's  bill 
so  far  as  the  eighty  acres  of  land  were  concerned, 
and  that  the  court,  by  failing  so  to  dismiss  the  bill 
and  by  rendering  a  decree  holding  the  title  to  the 
eighty  acres  to  be  vested  in  appellant  and  appellees 
as  heirs  of  Catherine  Shields,  deceased,  subject  to  a 


272 

life  estate  tlierein  of  the  appellant,  granted  affirmative 
relief  upon  a  simple  answer.  We  do  not  think  that 
the  decree  is  erroneous  in  this  regard.  The  doctrine 
is  fully  recognized,  that  the  defendants  in  a  bill  should 
not  be  granted  affirmative  relief  upon  their  answer. 
(White  V.  White,  103  111.  438;  Mason  v.  McGirr,  28 
id.  322).  It  is  also  true  that,  in  a  bill  to  remove  a 
cloud  from  the  title,  a  re-conveyance  from  the  defend- 
ant to  the  complainant  should  not  be  decreed.  (Pratt 
V.  Kendig,  128  111.  293;  Eucker  v.  Dooley,  49  id.  377). 

But  it  is  well  settled  that,  where  a  bill  in  chancery 
contains  a  general  prayer  for  relief,  it  must  be  re- 
garded as  sufficient  to  support  any  decree  warranted 
by  the  facts  alleged  in  the  bill.  (Gunnell  v.  Cockerill, 
supra;  Stanley  v.  Valentine,  79  111.  544;  Davidson  v. 
Burke,  143  id.  139;  Walker  v.  Converse,  148  id.  622; 
Gibbs  V.  Davis,  168  id.  205).  In  the  case  of  Gibbs 
V.  Davis,  supra,  we  said:  "The  rule  is,  where  a  bill 
contains  a  prayer  for  special  relief  and  also  a  prayer 
for  general  relief,  the  complainant  may  be  denied  a 
decree  for  the  relief  specially  prayed  for,  and,  under 
the  general  prayer,  be  granted  such  relief  as  he  may 
be  found  entitled  to  have  under  the  allegations  of 
fact  made  in  the  bill,  and  the  proof  in  support 
thereof." 

In  the  case  at  bar,  the  prayer  of  the  bill  is  that 
the  deed  in  question  "may  be  declared  null  and  void 
as  against  your  complainant,  and  all  persons  who 
may  hereafter  claim  by  or  through  him,  as  a  cloud 
upon  your  complainant's  title,  and  that  the  said  deed 
may  be  delivered  up  and  canceled ;  and  that  your  com- 
plainant may  have  such  other  and  further  relief,  as 
equity  may  require,  and  to  your  honor  may  seem 
meet."  The  amended  bill  alleges,  that  Catherine 
Shields  left  surviving  her  her  husband,  James  Shields, 
and  her  father  and  brothers  and  sisters,  "being  the 
only  heirs-at-law  of  Catherine  Shields."  It  also  al- 
leges, that  appellant  and  his  wife  occupied  the  lot, 
and  the  strip  connected  therewith,  as  their  homestead 
at  the  time  of  the  execution  of  the  deed,  and  "that 
he  and  his  wife  continued  to  live  thereon,  and  that  his 


273 

wife  did  not  join  in  tlie  execution  of  the  said  deed, 
and  that  it  was  void  and  convej-ed  no  title."  It  is 
also  alleged  in  the  bill,  ''that  no  complete  legal  title 
was  conveyed  to  the  said  Catherine  Shields;"  and 
"that  the  said  deed  is  without  any  legal  effect  what- 
ever, though  the  same  may  not  appear  on  the  face 
of  said  deed."  The  bill  also  prays  "that  the  said  deed 
be  set  aside  as  a  cloud  upon  your  complainant's  title, 
and  your  complainant  prays  the  court  that  the  said 
deed  be  revoked  and  declared  null  and  void,  and  that 
the  same  be  delivered  up  and  canceled. ' '  The  bill  was 
also  amended  by  inserting  the  allegation  "that,  if  the 
court  refuses  the  relief  above  asked,  this  complainant 
prays  that  the  court  construe  the  said  deed,  and  de- 
termine whether  any  title  of  estate  passed  by  said 
deed.  Complainant  further  prays  that,  if  the  court 
refuse  the  relief  above  asked,  the  court  set  aside  the 
said  deed  'as  to  the  homestead,'  "  etc. 

Under  the  prayer  of  the  bill  and  the  allegations 
made  therein  as  above  referred  to,  the  decree  was  not 
too  broad.  It  merely  construed  the  deed,  and  deter- 
mined what  title  passed  thereby  in  accordance  with 
the  prayer  of  the  bill.  Having  found  that  the  deed 
was  void  as  a  conveyance  of  the  homestead,  it  pro- 
ceeded to  determine  the  title  as  to  the  farm  of  eighty 
acres.  As  the  court  could  not,  under  the  facts,  grant 
the  special  prayer  for  the  cancellation  of  the  deed  as 
a  conveyance  of  the  whole  of  the  property,  it  could 
only  grant  the  general  relief  of  finding  and  decreeing 
the  deed  void  as  to  the  homestead,  and  of  finding  and 
decreeing  the  deed  valid  as  to  the  eighty  acres.  The 
relief  decreed  was  not  upon  the  answer,  but  was  un- 
der the  prayer  of  the  bill.  The  title  to  the  eighty  acres 
was  not  vested  in  the  appellant  and  the  heirs  of  his 
deceased  wife  by  the  decree,  but  it  had  already  been 
so  vested  by  the  deed,  and  by  the  law,  as  applied  to 
the  construction  of  the  deed.  A  court  of  equity  could 
not,  in  the  performance  of  its  legitimate  functions, 
decree  otherwise  than  it  did  on  the  facts  of  this  case. 

Accordingly  the  decree  of  the  Circuit  Court  is  af- 
firmed. 

Decree  affirmed. 


274 

WILLIAMSON  V.  MONROE, 

101  Fed.  322. 

(1900.) 

On  the  above  facts  the  question  arises  as  to  whether 
Monroe  and  Lee  must  be  held  to  an  accounting  to  the 
firm  of  Monroe,  Strang,  Lee  &  Co.  for  the  profits  on 
the  70-mile  contract,  taken  in  their  own  names.  A  pre- 
liminary question  is  whether  Strang  and  Williamson 
are  barred  by  laches  from  maintaining  their  suit  as 
to  the  70-mile  contract.  In  stating  the  principles  of 
law  applicable  on  these  points,  it  is  not  considered 
necessary,  even  if  time  and  other  pressing  duties  ad- 
mitted, to  go  into  an  analysis  of  the  cases  cited  in  the 
elaborate  briefs  of  counsel.  Indeed,  it  is  well-nigh 
impracticable,   and,   if  done,   altogether   unprofitable. 

It  was  insisted  that  the  court  was  without  jurisdic- 
tion as  to  the  70-mile  contract  because  the  law  afforded 
an  adequate  remedy.  If  this  were  true  (which  is  not 
the  case),  the  necessity  for  a  bill  in  equity  to  settle 
the  partnership  as  to  the  50-mile  contract,  and  the 
other  expenses  of  the  firm,  was  made  necessary  by  rea- 
son of  the  action  of  Creech,  acting  in  concert,  and  in 
the  interest  of  Monroe  and  Lee,  in  refusing  to  deposit 
the  money  of  the  firm  in  the  Merchant's  Bank,  accord- 
ing to  the  contract;  and  the  court,  having  jurisdiction 
of  the  case  and  the  parties  for  the  purpose  of  settling 
the  partnership  for  the  50-mile  contract,  will  retain 
it  for  the  purpose  of  administering  complete  relief  be- 
tween all  the  parties.  Hopkins  v.  Grimshaw,  165  U.  S. 
358,  17  Sup.  Ct.  401,  41  L.  Ed.  739.  Moreover,  it  is 
the  settled  law,  in  the  federal  courts,  that  where  it  is 
competent  for  a  court  to  grant  the  relief  sought,  and 
it  has  jurisdiction  of  the  subject-matter,  the  objection 
that  there  is  an  adequate  remedy  at  law  should  be 
taken  at  the  earliest  opportuntiy,  and  before  defend- 
ants enter  upon  a  full  defense.  Reynes  v.  Dumont, 
130  U.  S.  354,  9  Sup.  Ct.  486,  32  L.  Ed.  934;  Kilbourn 
V.  Sunderland,  130  U.  S.  514,  9  Sup.  Ct.  594,  32  L.  Ed. 


275 

1005.    The  jurisdiction  of  the  court  in  this  case  is  be- 
lieved to  be  beyond  dispute. 

The  rule  governing  laches  in  the  institution  of  bills 
in  equity  for  fraud  is  admirably  stated  and  abundantly 
supported  by  authority  in  Kelley  v.  Boettcher  (de- 
cided by  the  Eighth  Circuit  Court  of  Appeals)  29  C.  C. 
A.  14,  85  Fed.  55.  Judge  Sanborn,  delivering  the  opin- 
ion of  the  court,  said: 

"In  the  application  of  the  doctrine  of  laches,  the 
settled  rule  is  that  courts  of  equity  are  not  bound  by, 
but  that  they  usually  act  or  refuse  to  act  in  analogy 
to,  the  statute  of  limitations  relating  to  actions  at  law 
of  like  character.  Rugan  v.  Sabin,  10  U.  S.  App.  519, 
53-4,  3  C.  C.  A.  578,  582,  53  Fed.  415,  420;  Billings  v. 
Smelting  Co.,  10  U.  S.  App.  1,  62,  2  C.  C.  A.  252,'  262, 
263,  51  Fed.  338,  349;  Bogan  v.  Mortgage  Co.,  27  U.  S. 
App.  346,  357,  11  C.  C.  A.  128,  135,  63  Fed.  192,  199; 
Kinne  v.  Webb,  12  U.  S.  App.  137,  148,  4  C.  C.  A.  170, 
177,  54  Fed.  34,  40;  Scheftel  v.  Hays,  19  U.  S.  App. 
220,  226,  7  C.  C.  A.  308,  312,  58  Fed.  457,  460;  Wagner 
V.  Baird,  7  How.  234,  258,  12  L.  Ed.  681 ;  Godden  v. 
Kimmell,  99  U.  S.  301,  310,  25  L.  Ed.  431 ;  Wood  v. 
Carpenter,  101  U.  S.  135,  139,  25  L.  Ed.  807.  The 
meaning  of  this  rule  is  that,  under  ordinary  circum- 
stances, a  suit  in  equity  will  not  be  stayed  for  laches 
before,  and  will  be  stayed  after,  the  time  fixed  by  the 
analogous  statute  of  limitations  at  law;  but  if  unusual 
conditions  or  extraordinary  circumstances  make  it  in- 
equitable to  allow  the  prosecution  of  a  suit  after  a 
briefer,  or  to  forbid  its  maintenance  after  a  longer, 
period  than  that  fixed  by  the  statute,  the  chancellor 
will  not  be  bound  by  the  statute,  but  will  determine 
the  extraordinary  case  in  accordance  with  the  equities 
which  condition  it.  The  practical  result  is  that  a  suit 
in  equity  for  relief  on  the  ground  of  fraud  would  not 
be  barred  by  laches  in  the  state  of  Colorado  in  less 
than  three  years  after  the  discovery  of  the  fraud,  un- 
less unusual  circumstances  made  it  inequitable  to 
allow  its  prosecution.  Some  of  the  circumstances 
which  will  induce  a  court  of  equity  to  apply  the  doc- 
trine of  laches  in  a  shorter  time  than  that  fixed  by  the 
statute  are  the  destruction  of  the  muniments  of  title, 
the  death  or  removal  of  parties,  the  number  of  inno- 
cent purchasers  who  may  be  affected,  radical  changes 


276 

in  the  conditions  and  value  of  the  property,  and  its 
speculative  character.  Lemoine  v.  Dunklin  Co.,  10 
U.  S.  App.  227,  239,  2  C.  C.  A.  343,  348,  51  Fed.  487, 
492.  When  a  suit  is  brought  within  the  time  fixed  by 
the  analogous  statute,  the  burden  is  on  the  defendant 
to  show,  either  from  the  face  of  the  bill  or  by  his  an- 
swer, that  extraordinary  circumstances  exist  which 
require  the  application  of  the  doctrine  of  laches;  and, 
when  such  a  suit  is  brought  after  the  statutory  time 
has  elapsed,  the  burden  is  on  the  complainant  to  show, 
by  suitable  averments  in  his  bill,  that  it  would  be  in- 
equitable to  apply  it  to  his  case.  The  cases  of  Wag- 
ner V.  Baird,  7  How.  234,  12  L.  Ed.  681;  Godden  v. 
Kimmell,  99  U.  S.  201,  25  L.  Ed.  431 ;  Wood  v.  Car- 
penter, 101  U.  S.  135,  139,  25  L.  Ed.  807;  and  Rugan 
V.  Sabin,  10  U.  S.  App.  519,  534,  3  C.  C.  A.  578,  582, 
53  Fed.  415,  420, — belong  to  the  class  of  cases  in  which 
the  doctrine  of  laches  was  applied  after  the  statute 
of  limitations  had  run.  The  cases  of  Billings  v.  Smelt- 
ing Co.,  10  U.  S.  App.  1,  62,  2  C.  C.  A.  252,  262,  363, 
51  Fed.  338,  349,  and  Bogan  v.  Mortgage  Co.,  27  U.  S. 
App.  347,  357,  11  C.  C.  A.  128,  135,  63  Fed.  192,  belong 
to  the  class  of  cases  in  which  the  court  refused  to 
apply  the  doctrine  of  laches  within  the  time  fixed  by 
the  statute.  In  the  latter  case  this  court  declared  that 
this  doctrine  was  applied  by  analogy  to  the  statute  of 
limitations,  to  promote,  not  to  defeat,  justice,  and  re- 
fused to  invoke  it  after  a  delay  of  30  months.  It  is  a 
familiar  maxim  of  the  courts  of  chancery,  long  since 
embodied  in  our  statutes,  that  no  time  runs  against 
the  victim  of  a  fraud  while  its  perpetrator  fraudu- 
lently and  successfully  conceals  it.  Scheftel  v.  Hays, 
19  U.  S.  App.  220,  226,  7  C.  C.  A.  308,  312,  58  Fed. 
457,  460;  Alden  v.  Gregory,  2  Eden,  285;  Prevost  v. 
Gratz,  6  Wheat.  481,  5  L.  Ed.  311 ;  Michoud  v.  Girod, 
4  How.  503,  11  L.  Ed.  1076;  Badger  v.  Badger,  2  Wall. 
87,  92,  17  L.  Ed.  836." 

This  suit  is  not  barred  by  any  statute  of  limitations 
applicable  to  such  cases  in  Arkansas.  Wilson  v.  An- 
thony, 19  Ark.  16 ;  Taylor  v.  Adams,  14  Ark.  62 ;  Sul- 
livan V.  Railroad  Co.,  94  U.  S.  811,  812,  24  L.  Ed.  324. 
Nor  is  there  anything  shown  to  take  the  case  out  of 
the  rule  laid  down  in  the  case  of  Kelley  v.  Boettcher, 
supra,   to    the   effect   ''that   under   ordinary   circum- 


277 

stances  a  suit  in  equity  will  not  be  stayed  for  laches 
before  tlie  statute  of  limitations  runs,"  and  imposing 
upon  the  defendants,  where  the  statute  has  not  run, 
the  burden  of  showing  such  unusual  conditions  or  ex- 
traordinary circumstances  as  make  it  inequitable  to 
allow  the  suit  to  be  prosecuted,  or  to  justify  the  appli- 
cation of  the  doctrine  of  laches. 

A  number  of  cases — chiefly  mining  cases  (a  class  of 
property  subject  to  great  fluctuations  of  value) — have 
been  cited  by  defendants  to  support  the  doctrine  for 
which  they  contend,  and  in  some  of  them  the  doctrine 
of  laches  has  been  applied  after  a  briefer  time  has 
elapsed  than  in  this  case,  but  it  is  not  believed  they 
are  applicable  to  the  case  at  bar.  In  fact,  Kelley  v. 
Boettcher,  supra,  is  itself  a  mining  case.  In  this  case 
there  has  been  no  destruction  of  evidence,  except  de- 
fendant Lee's  letter  book,  which  was  destroyed  by 
himself,  if  at  all;  no  death  or  removal  of  parties;  no 
innocent  parties  to  suffer ;  no  death  or  removal  of  wit- 
nesses; and  no  such  lapse  of  time  as  that  witnesses 
would  be  likely  to  forget  important  facts;  no  prop- 
erty to  fluctuate  in  value;  no  loss;  nothing,  except  the 
fact  that  Monroe  and  Lee  assumed  the  risk  and  bur- 
den of  the  work  over  the  protest  of  Williamson  and 
Strang.  Moreover,  laches  should  never  be  applied  to 
defeat  justice,  nor  should  it  be  applied  when  it  ap- 
pears, as  in  this  case,  that,  while  plaintiffs  felt  they 
had  been  wronged,  yet  were  without  evidence  to  show 
it,  and  when  the  evidence  now  shows  that  no  amount 
of  inquiry  made  of  persons  likely  to  know  the  facts,  at 
the  time  the  plaintiffs  first  learned  that  they  were  ex- 
cluded from  the  70-mile  contract,  would,  with  any  rea- 
sonable degree  of  certainty,  or  even  probability,  have 
unlocked  the  salient  facts  and  writings  by  which  the 
positive  denials  of  both  defendants  are  now  over- 
turned; for,  even  on  the  witness  stand,  those  who 
knew  the  facts  denied  them,  and  the  truth  was  dis- 
closed over  their  most  persistent  and  earnest  efforts 
to  conceal  it.  The  doctrine  of  laches  ought  not  to  be 
applied  under  the  circumstances  of  this  case,  and  es- 
pecially since  the  institution  of  a  suit  at  the  time  the 


278 

70-mile  contract  was  executed  would  most  likely,  un- 
der all  the  circumstances  then  surrounding  the  firm, 
the  construction  company,  and  the  railroad  company, 
have  resulted  disastrously  to  the  firm,  not  only  as  to 
that  contract,  but  as  to  the  50-mile  contract  also,  while 
delay  could  harm  no  one,  and  conduce  to  the  benefit 
of  all  the  firm.  It  cannot,  therefore,  be  fairly  said 
tliat  the  plaintiffs  delayed  suit  that  they  might  specu- 
late on  the  chances  which  the  future  would  give  them 
of  avoiding  the  risk  if  the  venture  proved  unprofit- 
able, and  asserting  their  claim  if  the  contract  resulted 
in  gain,  since  the  defendants  had  the  full  opportunity 
to  defeat  such  contingency  by  recognizing  plaintiffs' 
rights  when  the  claim  was  made  for  an  interest  in  the 
contract,  accompanied  by  an  offer  to  share  its  bur- 
dens; indeed,  they  elected  to  take  all  the  risk  when 
they  determined  to  fraudulently  exclude  their  part- 
ners, and  should  not  now  be  allowed,  in  a  court  of 
equity,  to  profit  by  their  wrong. 


AHOLTZ  V.  GOLTRA. 

114    111.    241. 

(1885.) 

ScoTT,  J.  The  bill  in  this  case  was  brought  by 
Frederick  Aholtz  and  George  Stare  against  Isaac  V. 
Goltra,  Edward  0.  Smith,  and  William  W.  Foster  in 
the  Circuit  Court  of  Macon  county,  and  is  for  an  in- 
junction and  relief.  It  is  alleged  in  the  bill  that  de- 
fendants Goltra  and  Smith  recovered  a  judgment  at 
law  in  the  Circuit  Court  against  complainants  on  an 
appeal-bond  in  the  sum  of  $300,  with  interest  and 
costs;  that  they  had  caused  an  execution  to  be  issued 
on  such  judgment;  and  that  defendant  Foster,  who  is 
sheriff  of  Macon  county,  is  about  to  levy  the  same  on 
the  property  of  one  or  both  of  complainants.  No  com- 
plaint is  made  against  the  regularity  or  justness  of 
the  judgment.  It  was  recovered  in  an  action  of  debt 
on  an  appeal-bond,  wherein  vcomplainant  Aholtz  was 
principal  and  his  co-complainant  Stare  was  surety  for 


279 

him.  It  is  alleged  that  complainant  Aholtz  was  the 
owner  of  certain  town  lots  in  Blue  Momid,  in  Macon 
county,  with  a  dwelling-house  situated  thereon;  that 
Goltra  and  Smith,  by  wrongful  means,  and  by  collu- 
sion with  a  then  tenant  of  Aholtz,  got  possession  of  the 
house  and  premises  without  his  knowledge,  and  by 
themselves  and  their  tenants,  since  April,  1875,  for  a 
period  of  over  eight  years,  forcibly  kept  the  possession 
from  complainant  Aholtz ;  that  he  had  only  recently  re- 
gained possession  of  the  premises ;  and  that  during  the 
period  defendants  withheld  the  same  from  complain- 
ant they  were  reasonably  worth  the  sum  of  $120  for  each 
year,  amounting  in  the  aggregate  to  the  sum  of  $1,000. 
There  is  also  an  allegation  in  the  bill  that  the  prem- 
ises were  damaged  by  the  defendants  or  their  tenant 
to  the  extent  of  $50,  which,  together  with  the  reason- 
able rent  due,  makes  a  total  sum  of  $1,050  due  from 
defendants  Goltra  and  Smith  to  complainant  Aholtz. 
The  prayer  of  the  bill  is  that  an  account  may  be  taken, 
by  and  under  the  direction  of  the  court,  (1)  of  the 
amount  due  to  defendants  Goltra  and  Smith  on  the 
judgment  in  their  favor;  and  (2)  for  an  account  of  the 
reasonable  rental  value  of  the  premises  and  improve- 
ments thereon  during  the  time  the  defendants  held  the 
same  and  kept  complainant  Aholtz  out  of  possession; 
that  one  claim  be  set  off  against  the  other;  that  the 
amount  that  may  be  so  found  to  be  due  to  defendants 
on  such  judgment,  with  the  interest  and  costs,  be  first 
paid  and  satisfied;  and  that  complainant  Aholtz  have 
a  decree  against  Goltra  and  Smith  for  the  remainder, 
for  whatever  may  be  found  due  to  him  for  the  reason- 
able rent  and  damages  to  the  premises,  and  in  the 
meantime  that  an  injunction  issue  restraining  the 
sheriff  from  levying  the  execution  on  the  property  of 
either  complainant,  and  for  general  relief.  To  the 
bill  stating  these  facts  and  others,  some  of  which  may 
be  stated  further  on,  with  sufficient  fullness,  the  court 
sustained  a  demurrer,  and  dismissed  for  want  of 
equity.  That  decree  was  affirmed  in  the  Appellate 
Court  of  the  third  district,  and  complainants  bring 
the  case  to  this  court  on  their  further  appeal. 


^80 

It  very  clearly  appears  complainants  have  a  full, 
complete,  and  adequate  remedy  at  law,  and  their  bill 
was  therefore  very  properly  dismissed  on  demurrer, 
as  was  done,  for  want  of  equity.  The  bill  contains  no 
allegation  whatever  that  would  warrant  a  court  of 
chancery  to  assume  jurisdiction.  It  is  nowhere  alleged 
defendants  Goltra  and  Smith,  or  either  of  them,  are 
insolvent,  and  no  reason  is  shown  why  complainant 
Aholtz  may  not  proceed  at  law  to  recover  whatever,  if 
anything,  may  be  due  to  him  from  either  or  both  de- 
fendants. The  only  ground  suggested  in  the  bill  is  that 
neither  defendant  resided  in  Macon  county,  so  that 
process  from  the  Circuit  Court  of  that  county  could 
be  legally  served  upon  them.  It  is  averred  that  Smith 
is  a  non-resident  of  the  state,  and  that  Goltra  is  a 
non-resident  of  Macon  county,  but  that  the  latter- 
named  defendant  resides  in  Sangamon  county,  in  this 
state,  which,  of  course,  is  the  next  adjoining  county 
to  Macon.  No  reason  is  shown  why  complainant 
Aholtz  cannot  pursue  him  remedy  at  law  against 
Goltra  and  recover  anything  that  may  be  due  him, 
either  from  him  or  from  Goltra  and  Smith.  No  ground 
whatever  is  suggested  for  equitable  relief,  and  as  it 
does  not  appear  but  complainants  had  a  full,  complete, 
and  adequate  remedy  at  law,  they  will  be  remitted  to 
a  common-law  court  for  the  recovery  of  anything  that 
may  be  due  to  either  of  them.  The  claims  they  insist 
upon,  if  valid,  are  legal  claims,  and  no  reason  appears 
why  equity  should  assume  jurisdiction  to  adjust  them. 

The  judgment  of  the  Appellate  Court  will  be  af- 
firmed. 


LESTER  V.  STEVENS, 

29  111.  155. 

(1862.) 

Caton,  C.  J.  At  the  time  this  plea  to  the  jurisdic- 
tion of  the  court  was  filed,  there  were  four  defendants, 
one  of  whom,  the  sheriff  of  Ogle,  had  been  brought  in 
and  made  a  party  by  the  amended  bill.    The  plea  avers 


281 

that  Willard  and  Pearce,  'Hlie  major  part  of  said  de- 
fendants, ' '  reside  in  Cook  county.  The  averment  that 
two  is  the  major  part  of  four  does  not  make  it  so ;  nor 
does  the  setting  of  a  plea  for  hearing  admit  that  which 
cannot  be  true.  Now,  our  statute  says  that  the  suit 
shall  be  commenced  in  the  county  where  the  defend- 
ants, or  a  major  part  of  them,  reside;  this,  if  it  were 
possible  to  raise  the  question,  would  put  beyond  the 
jurisdiction  of  any  court  a  vast  number  of  suits  where 
there  are  several  defendants,  for  it  is  very  common 
that  a  major  part  of  the  defendants  do  not  reside  in 
any  one  county;  and  but  for  the  rule  that  every  plea 
to  the  jurisdiction  must  give  a  better  writ,  and  show 
affirmatively  that  some  other  court  can  take  jurisdic- 
tion, there  would  be  a  failure  of  justice  in  such  cases. 
In  order  to  make  this  plea  good,  we  must  find  in  it 
the  facts  which  would  give  some  other  court  jurisdic- 
tion. We  only  learn  from  the  plea  that  two  of  the 
four  defendants  reside  in  Cook  county.  This  is  not 
sufficient  to  give  that  court  jurisdiction  under  the  stat- 
ute, any  more  than  the  residence  of  the  other  two  in 
Ogle  would  give  that  court  jurisdiction.  It  gives  the 
party  no  better  writ,  and  he  may  stay  where  he  is  till 
he  is  shown  a  better  one. 

The  next  objection  is  that  this  is  a  bill  to  restrain 
the  collection  of  a  judgment  rendered  in  the  Circuit 
Court  of  Cook  county.  If  this  were  the  primary  object 
of  the  bill,  it  would  undoubtedly  be  fatal  to  the  juris- 
diction of  the  court,  but  it  is  not  so  where  the  prin- 
cipal object  of  the  bill  is  for  other  relief,  and  the  stay 
of  the  collection  of  the  judgment  is  incidental  or  aux- 
iliary, and  for  the  purpose  of  making  the  relief  com- 
plete for  which  the  bill  is  filed;  and  for  the  purpose 
of  determining  these  questions,  even  on  such  a  plea  as 
this,  we  must  look  into  the  bill  itself.  If  the  plea 
avers  that  there  are  but  three  defendants,  or  that  two 
is  a  major  part  of  the  defendants,  which  is  the  same 
thing  in  substance,  that  averment  in  the  plea  cannot 
avail  against  the  fact  that  there  is  on  the  face  of 
the  bill  manifestly  four  defendants;  and  so  when  we 
can  see  that  the  principal  objects  of  the  bill  are  other 


282 

than  the  stay  of  the  execution,  and  that  that  is  but  the 
incident,  the  averment  of  the  plea  to  the  contrary  can- 
not avail. 

Here  the  principal  objects  of  the  bill  are  to  be  re- 
lieved from  a  mortgage  or  trust  deed,  and  a  sale  made 
under  it  on  account  of  usury ;  and  the  stay  of  the  exe- 
cution in  the  hands  of  one  of  the  defendants  is  intro- 
duced as  incidental  to  that  main  object.  Whether,  in 
the  attainment  of  that  main  object,  the  complainants 
can  obtain  relief  from  that  judgment,  is  not  before  us 
on  this  plea.  The  bill  may  be  obnoxious  to  a  demurrer 
for  multifariousness,  or  for  want  of  equity,  or  for  any 
other  cause,  without  affecting  this  question,  which  is 
one  of  jurisdiction  only. 

We  think  the  plea  was  insufficient  to  oust  the  court 
of  its  jurisdiction,  and  that  it  should  not  have  been 
sustained.  We  have  treated  what  the  party  calls  a 
demurrer  to  the  plea  as  simply  setting  the  plea  down 
for  hearing,  which  is  the  proper  mode  of  raising  the 
question  of  the  sufficiency  of  a  plea  to  bill  in  chan- 
cery, because  the  court  below  so  treated  it.  The  court 
would  have  been  justified  in  disregarding  the  paper 
called  a  demurrer,  as  inappropriate  to  such  a  plead- 
ing. 

The  decree  is  reversed,  and  the  suit  remanded. 

Decree  reversed. 


JEWETT  ET  AL.,  COMMMISSIONERS,   v.   SWEET. 

178  111.  96. 

(1899.) 

BoGGS,  J.  This  was  a  bill  in  chancery  by  appellee 
for  an  injunction  restraining  the  appellants,  in  their 
official  capacity  as  commissioners  of  highways,  from 
cutting  a  certain  ditch  and  waterway  through  a  high- 
way and  turnpike  road  upon  which  the  farm  of  appellee 
abuts.  Decree  as  prayed  was  awarded  by  the  chancel- 
lor, and  on  appeal  the  decree  was  affirmed  by  the  Ap- 
pellate Court  for  the  Second  District.  This  is  a  further 
appeal  by  the  said  commissioners. 


283 

The  opinion  of  the  Appellate  Court,  rendered  by  Mr. 
Justice  DiBELL,  is  as  follows: 

"Appellee  owns  the  southeast  quarter  of  the  north- 
east quarter  of  section  7,  in  the  town  of  Harrison,  in 
Winnebago  county,  and  a  tract  of  twenty-four  acres 
next  south  thereof.  John  Dolan  owns  land  north  of 
appellee.  The  heirs  of  Catherine  Grattan,  deceased, 
own  lands  west  of  Dolan,  and  own  the  southwest  quar- 
ter of  the  northeast  quarter  of  said  section  7.  William 
Bodine  owns  a  twenty-acre  tract  south  of  the  Grattan 
lands.  The  Grattan  and  Bodine  tracts  are  therefore 
next  west  of  the  two  tracts  owned  by  appellee.  Be- 
tween the  lands  of  appellee  and  Dolan,  on  the  one  side, 
and  of  Grattan  and  Bodine,  on  the  other,  is  a  north 
and  south  highway.  About  three-eighths  of  a  mile 
north  of  appellee's  land.  Otter  creek  flows  in  a  general 
easterly  direction,  and  crosses  the  highway,  and  there 
is  a  bridge  in  the  highway  at  that  place.  About  half 
a  mile  directly  west  from  the  southern  part  of  appel- 
lee's land  is  a  lake  or  pond,  the  natural  and  ordinary 
outlet  of  which  is  due  north  into  Otter  creek.  In  times 
of  high  water  the  pond  also  overflows  in  a  northerly 
and  easterly  direction.  Several  natural  draws  or  de- 
pressions cross  the  highway  south  of  the  creek,  and 
carry  off  these  waters.  There  is  one  bridge  across 
such  a  draw  opposite  the  south  part  of  Dolan 's  land, 
and  three  bridges  cross  three  such  draws  opposite  the 
north  part  of  appellee's  land.  Some  forty  years  before 
this  suit  was  begun,  the  then  owner  of  the  Grattan 
and  Bodine  lands  dug  a  ditch  east  and  west  on  the 
north  line  of  Bodine 's  present  land,  extending  back 
from  said  highway  eighty  rods  Said  ditch  was  dug 
to  carry  a  part  of  said  overflow  off  the  lands  here  called 
the  Grattan  and  Bodine  lands,  and  to  carry  it  to  the 
highway.  The  highway  authorities  at  that  time  built 
a  sluiceway  across  the  highway  at  that  point  to  let 
said  waters  across  the  road.  At  or  about  that  time  a 
ditch  was  dug  in  the  highway  on  the  east  side  thereof, 
which  received  said  waters  to  a  greater  or  less  extent, 
and  conveyed  them  north  to  the  draws  before  men- 
tioned.   At  some  time,  variously  estimated  by  the  wit« 


284 

nesses  at  from  seventeen  to  thirty  years  before  this 
suit  was  brought,  the  highway  authorities  closed  said 
ditch  on  tlie  east  side  of  the  highway,  took  out  said 
sluiceway  at  the  east  end  of  said  Grattan  and  Bodine 
ditch,  turnpiked  said  road,  and  dug  a  deep  ditch  on 
the  west  side  of  said  turnpike,  which  received  the 
waters  from  said  Grattan  and  Bodine  ditch,  and  con- 
ducted them  north  to  said  draws  and  bridges.  In  the 
spring  of  1897  the  highway  commissioners  of  said  town 
decided  to  cut  through  the  turnpike  at  a  point  135 
feet  north  of  the  place  where  said  old  sluiceway  had 
formerly  been,  and  315  feet  south  of  the  most  southern 
of  the  existing  bridges,  and  to  put  in  a  bridge  across 
the  turnpike  at  that  point,  and  thus  to  provide  a  way 
across  the  highway  for  the  water  coming  from  the 
west,  and  from  the  Grattan  and  Bodine  ditch,  and  to 
discharge  said  water  upon  appellee's  land  at  that 
point.  Thereupon  appellee  began  this  suit,  by  filing 
a  bill  to  enjoin  the  commissioners  from  cutting  through 
said  turnpike  and  putting  in  said  bridge  at  that  point. 
.He  set  out  the  facts  as  to  the  location  and  ownership 
of  the  land,  the  waters  and  their  natural  outlets,  the 
bridges  already  in  existence,  the  Grattan  and  Bodine 
ditch,  and  the  highway  ditches ;  and  he  charged  that  to 
open  said  turnpike  and  put  in  said  bridge  would  take 
said  waters  out  of  their  natural  course,  and  cast  them 
upon  his  lands  to  the  east  of  said  proposed  bridge,  and 
irreparably  injure  them.  A  preliminary  injunction  was 
granted,  and  the  commissioners  answered.  Proofs 
were  heard,  and  there  was  a  decree  making  said  in- 
junction perpetual.  From  that  decree  the  commis- 
sioners now  appeal. 

''The  commissioners,  in  their  answer,  do  not  claim 
that  the  proper  care  of  the  highway  requires  the  new 
bridge  to  be  put  in  and  the  proposed  cut  to  be  made 
through  the  turnpike.  They  do  not  set  up  in  their 
answer  that  the  highway,  in  its  present  condition  and 
with  its  present  bridges,  is  in  any  respect  defective  or 
out  of  repair.  They  do  not  seek  to  justify  their  pro- 
posed action  on  the  ground  that  it  will  in  any  respect 
improve  the  highway.     They  do  not  suggest  in  their 


285 

answer  that  they  are  acting  for  the  public  good. 
Neither  in  their  answer  nor  their  proofs  do  they  deny 
that  complainant's  lands  will  be  injured  by  their  pro- 
posed course,  and  they  do  not  offer  to  restore  the 
ditch  on  the  east  side  of  the  highway,  which  was  some 
protection  to  the  land  on  that  side  of  the  road  when 
said  former  sluiceway  was  in  existence  at  the  end  of 
the  Grattan  and  Bodine  ditch.  The  answer  does  assert 
the  right  of  the  commissioners  to  open  the  turnpike 
and  build  the  new  bridge,  regardless  of  its  effect  upon 
appellee's  land,  and  it  places  that  claim  of  right  upon 
two  grounds. 

"The  answer  is,  first  and  chiefly,  devoted  to  the 
claim  that  the  Grattan  and  Bodine  ditch  was  lawfully 
dug  by  the  man  who  then  owned  the  lands  west  of 
the  road,  and  that  it  and  the  sliuceway  across  the 
highway  at  the  end  thereof  were  constructed  with  the 
approval  of  the  man  who  then  owned  the  land  east 
of  the  road,  appellee's  grantor;  that  the  highway  com- 
missioners ought  not  to  have  taken  out  said  sluiceway, 
and  that  to  do  so  was  a  wrong  against  the  owners  of 
the  Grattan  and  Bodine  lands;  and  the  highway  com- 
missioners here  set  up  and  pleaded  the  rights  which 
they  claim  exist  in  the  owners  of  said  lands  west  of  the 
highway  by  reason  of  what  occurred  forty  years  before 
between  the  adjacent  landowners.     The  Grattan  heirs 
and  Bodine  are  not  before  the  court.     They  have  not 
asked  any  relief  against  appellee.    We  are  of  opinion 
the  highway  commissioners  have  no  right  to  injure 
appellee  merely  for  the  purpose  of  benefiting  Bodine 
and  the  Grattans.     If  the  Grattans  and  Bodine  have 
any  contract  rights  or  any  equities  against  appellee 
because   of  what   occurred   between   their   respective 
grantors  when  the  Grattan  and  Bodine  ditch  was  dug, 
that  is  a  matter  for  the  interested  parties  to  litigate,  if 
they  desire;  but  we  think  the  highway  commissioners 
should  not  take  it  upon  themselves  to  determine  those 
questions,  nor  to  initiate  this  change  in  the  course  of 
the  water,  and  carry  on  litigation  for  the  benefit  of 
Bodine  and  the  Grattans. 

"The  answer  secondly  claims  that  the  natural  flow 


286 

of  the  water  from  the  west  is  across  the  highway  at 
about  the  point  of  the  proposed  bridge,  and  therefore 
the  commissioners  may  build  a  bridge  there  if  they 
clioose.  We  tliink  the  preponderance  of  the  evidence  is 
that  the  water  from  the  lake  or  pond  in  question  would 
never  reach  the  place  where  the  commissioners  planned 
to  put  in  the  new  bridge  but  for  the  Grattan  and  Bodine 
ditch,  which  ditch,  we  tliink  the  evidence  shows,  was 
cut  through  a  rise  of  ground  which  would  have  pre- 
vented the  waters  from  the  pond  coming  into  a  state  of 
nature  to  the  point  where  it  was  proposed  to  locate  the 
new  bridge.  The  result  of  building  such  bridge  will 
be  to  cast  upon  appellee's  land  water  which  would  not 
have  come  upon  that  part  of  his  farm  in  a  state  of 
nature,  but  which  would  have  passed  northeasterly 
over  the  lands  of  Bodine  and  the  Grattans,  and  reached 
the  highway  at  one  of  the  bridges  already  in  the  road. 
The  commissioners  have  no  right  to  do  this,  and  in- 
junction is  a  proper  remedy  to  prevent  the  wrong. 
Graham  v.  Keene,  143  111.  425,  32  N.  E.  180. 

"It  is  argued  that  to  carry  this  water  to  the  old 
bridges  through  the  ditch  on  the  west  side  of  the  high- 
way is  to  discharge  it  where  they  have  no  right  to 
carry  it.  We  think  the  proof  shows  that  is  the  place 
the  overflow  would  have  reached  the  highway  if  the 
Grattan  and  Bodine  ditch  had  not  been  dug,  and  it  is 
the  point  to  which  the  highway  commissioners  have 
carried  it  for  not  less  than  seventeen,  and  perhaps 
thirty,  years ;  and,  when  it  crosses  the  highway  at  that 
point,  it  discharges  upon  the  lands  of  appellee,  and  not 
upon  the  lands  of  some  stranger,  but  at  the  point  where 
said  overflowing  waters  crossed  his  land  in  a  state  of 
nature,  and  where,  therefore,  he  is  bound  to  receive 
them. 

"Some  attempt  was  made  by  defendant  to  prove  that 
the  condition  of  the  highway  was  such  that  this  bridge 
was  needed,  or  that  to  put  in  the  new  bridge  would 
benefit  the  highway.  The  rule  that  a  party  cannot 
make  one  case  by  his  pleadings,  and  a  different  case  by 
his  proofs,  is  applicable  to  a  defendant  as  well  as  to 
a  complainant.     The  defendant  is  bound  to  apprise 


287 

the  complainant,  by  liis  answer,  of  the  nature  of  the 
case  he  intends  to  set  up,  and  cannot  avail  himself 
of  any  matter  of  defense  not  stated  in  his  answer,  even 
though  it  appears  in  evidence.  Johnson  v.  Johnson, 
114  111.  611,  3  N.  E.  232.  By  filing  an  answer,  the 
defendant  submits  to  the  court  the  case  made  by  the 
pleadings.  Kaufman  v.  Weiner,  169  111.  596,  48  N.  E. 
479 ;  Holmes  v.  Dole,  Clarke,  Ch.  71.  As  the  answer  in 
this  case  does  not  assert  any  public  necessity  for  the 
proposed  bridge,  nor  that  the  highway  will  be  improved 
thereby,  complainant  was  not  required  to  meet  that 
defense,  and  defendants  cannot  ask  a  decree  in  their 
favor  because  of  any  evidence  which  they  introduced 
on  that  subject.  But  the  proof  shows  the  commission- 
ers have  permitted  the  ditch  on  the  west  side  of  the 
road  to  become  filled  and  clogged  up  to  some  consid- 
erable extent,  and  have  let  willows  grow  in  it,  and 
corn  stalks,  straw,  hay,  and  stubble  to  accumulate 
against  the  willows,  to  the  serious  obstruction  of  the 
flow  of  the  water,  and  have  let  long  grass  grow  under 
the  present  bridges.  We  conclude  from  the  evidence 
that,  if  the  highway  commissioners  will  remove  the  ob- 
structions in  that  ditch,  and  under  the  existing  bridges, 
the  proposed  new  bridge  will  not  be  required  for  the 
benefit  of  the  highway.  We  think  the  answer  shows 
this  was  not  the  reason  why  they  planned  to  cut  the 
turnpike  and  put  in  the  bridge.  For  the  reasons  stated, 
the  decree  of  the  court  below  will  be  affirmed. ' ' 

We  find  the  conclusions  arrived  at  by  the  Appellate 
Court  as  to  the  matters  of  fact  involved  in  the  case 
abundantly  supported  by  the  proof.  The  principles  of 
law  announced  in  the  opinion  are  in  accord  with  our 
views.  There  seems  no  reason  why  we  should  indulge 
in  further  observations  as  to  the  case.  The  opinion 
of  the  Appellate  Court  is  adopted  as  the  opinion  of 
this  court,  and  its  judgment  is  affirmed. 

Judgment  affirmed. 


288 

MAHAR  V.  O'HARA, 

9  111.   424. 

(1847.) 

Opinion  of  the  court  by  Caton,  J.  On  the  20th 
of  July,  1840,  Helen  Mahar  filed  her  bill  in  the  [*426] 
Eandolph  Circuit  Court  to  enforce  the  payment 
of  a  contingent  legacy  secured  to  her  by  the  last  will 
and  testament  of  Henry  O'Hara,  against  James 
O'Hara,  executor  and  residuary  legatee  of  the  said 
Henry  O'Hara.  The  bill  states  that  before  and  at 
the  time  of  the  death  of  the  said  Henry  O'Hara,  she 
was  his  wife,  and  that  on  the  20th  of  June,  1826,  he 
made  and  published  his  last  will  and  testament  in  due 
form  of  law,  whereby  among  other  things  he  gave 
to  his  son  James,  the  present  defendant,  his  home- 
stead except  certain  specified  portions  which  he  gave 
to  other  devisees;  and  after  making  various  other 
bequests  and  devises,  the  testator  declared  it  to  be 
his  desire,  that  those  of  his  children  who  then  resided 
with  him  should  continue  to  reside  on  the  plantation 
after  his  death,  with  his  son  James,  and  that  his  wife 
Helen,  the  present  complainant,  should  continue  to 
reside  there  and  act  as  mother  to  his  children  and  to 
her  own,  and  that  they  should  reside  there  together 
so  long  as  they  could  agree;  but  in  case  the  complain- 
ant should  desire  to  reside  by  herself,  James  should 
build  her  a  comfortable  dwelling  house  convenient  to 
a  good  spring  of  water,  and  should  deliver  to  her  one 
hundred  bushels  of  corn,  twenty  bushels  of  wheat  and 
five  hundred  pounds  of  pork,  annually.  By  the  will, 
also,  there  were  a  considerable  number  of  specific  be- 
quests made  to  the  complainant,  although  of  no  great 
value.  The  bill  then  declares  that  inasmuch  as  he 
had  given  the  principal  part  of  his  estate,  and  re- 
quested him  to  make  the  several  payments  as  before 
expressed,  to  the  other  legatees  and  to  the  complain- 
ant, he  appoints  him,  the  said  James,  his  executor. 

The  bill  then  avers,  that  soon  after  the  death  of 
the  testator,  to  wit:  on  the  3d  day  of  July,  1826, 
James  O'Hara  proved  the  will,  and  took  upon  himself 


289 

tlie  execution  thereof,  and  possessed  himself  of  [*427] 
all  the  real  and  personal  estate  of  which  the  said 
testator  died  seized,  and  possessed  and  accepted  the 
real  estate  and  personal  property,  which  by  the  said  will 
were  devised  and  bequeathed  to  him.  The  defendant 
delivered  to  her  all  of  the  specific  property  be- 
queathed to  her  in  the  will,  and  built  the  house  as  di- 
rected in  the  will  for  her,  and  delivered  to  her  the 
provisions  as  specified  in  the  will  till  the  year  1830, 
since  which  time  he  has  refused  to  pay  the  said  an- 
nuity, although  she  has  ever  since  lived  separate 
from  the  said  James;  that  the  said  defendant  has, 
ever  since  the  death  of  the  said  testator,  received,  ac- 
cepted and  enjoyed  the  real  and  personal  estate  be- 
queathed and  de\'ised  to  him,  of  the  value  of  $5,000. 

The  defendant  in  his  answer  admits  all  of  the  ma- 
terial allegations  of  the  bill,  except  that  he  denies 
that  real  and  personal  estate  which  he  received  by 
the  will,  was  worth  $5,000.  He  admits  that  he  had  re- 
fused to  pay  the  annuity  for  the  time  mentioned  in 
the  bill,  for  the  reason  that  she  had  ceased  to  live  in, 
and  occupy,  the  house  which  he  had  built  for  her  on 
his  premises,  but  had  married  a  man  of  the  name  of 
Mahar  and  removed  to  the  state  of  Missouri. 

A  replication  was  filed  and  proofs  taken,  and  the 
cause  was  heard  by  the  court  below,  and  the  bill  dis- 
missed with  costs,  in  April,  1843,  which  decree  we  are 
asked  to  reverse,  and  to  render  a  decree  in  favor  of 
the  complainant  according  to  the.  prayer  of  the  bill. 

As  the  jurisdiction  of  a  court  of  equity  is  ques- 
tioned, that  will  be  first  considered.  The  several  Cir- 
cuit Courts  of  this  state  in  their  respective  circuits, 
have  the  same  jurisdiction  in  chancery  which  the 
court  of  chancery  in  England  has,  except  where  its 
jurisdiction  is  limited  by  express  statute,  or  by  neces- 
sary implication,  as  where  some  other  court  may  be 
vested  with  exclusive  jurisdiction  of  the  particular 
matter.  Our  courts  are  vested  with  the  same  powers 
and  are  governed  by  the  same  practice;  or  agreeably 
to  such  rules  as  may  be  established  by  said  courts, 
except  where  particular  provision  is  made  by  our 
statute. 


290 

Without  stopping  to  inquire  into  the  general  jurisdic- 
tion of  courts  of  equity  over  the  administration 
of  estates,  either  exckisively,  or  concurrently  [*428] 
with  the  ecclesiastical  courts  in  England,  or  in 
this  country  the  probate  courts,  it  is  sufficient  to  observe, 
that  the  jurisdiction  of  the  courts  of  equity  in  cases  of 
legacies,  has  been  firmly  established,  and  beyond  con- 
troversy, at  least  since  the  time  of  Lord  Nottingham. 
The  grounds  of  that  jurisdiction  are  various,  and 
most  satisfactory.  1  Story's  Eq.  Jur.  Chap.  10.  In 
equity,  executors  and  administrators  are  trustees, 
and  so  also  is  a  devisee  who  takes  a  devise,  charge- 
able with  legacies  or  debts.  No  better  illustration 
could  be  desired,  than  the  case  before  us.  Here  the 
testator  devised  an  etsate  to  his  son,  who  also  he 
made  his  executor,  and  in  consideration  of  the  devise, 
he  imposed  upon  his  son  the  burthen  of  supporting 
the  widow  of  the  testator  in  his  family,  so  long  as 
they  could  agree,  or  she  should  choose  to  reside 
there,  and  when  she  should  choose  to  live  by  herself, 
he  should  build  for  her  a  house,  and  furnish  her  an- 
nually with  a  specified  quantity  of  corn,  wheat  and 
pork.  Now,  in  equity  he  is  considered  a  trustee  for 
the  purpose  of  executing  these  provisions  in  favor 
of  the  widow,  and  by  accepting  the  estate  he  assumed 
the  trust,  and  the  estate  thus  devised  is  not  only 
chargeable  in  equity  with  the  trust,  but  by  accepting 
the  devise  he  became  personally  responsible  for  the 
payment  of  the  legacy,  according  to  the  provisions  of 
the  will.  Indeed,  without  the  aid  of  the  searching 
powers  of  the  court  of  equity,  estates  might  never  be 
fairly  settled,  frauds  would  go  undetected,  and  lega- 
cies but  too  frequently  would  remain  unsatisfied,  and 
the  intention  of  testators  would  be  defeated.  But  so 
far  from  the  jurisdiction  of  the  courts  of  equity  in 
cases  of  legacies  being  taken  away  by  our  statutes, 
it  is  expressly  confirmed.  The  131st  section  of  our 
statute  of  wills,  among  other  things,  provides:  *'And 
every  executor,  being  a  residuary  legatee,  may  have 
an  action  of  account,  or  suit  in  equity  against  his  co- 
executor,  or  co-executors,  and  recover  his  part  of  the 


291 

estate  in  his  or  their  hands;  and  any  other  legatee 
may  have  the  like  remedy  against  the  executors;  pro- 
vided, that  before  any  action  should  be  commenced 
for  the  legacies  as  aforesaid,  the  court  of  pro- 
bate shall  make  an  order  directing  them  to  be  [*429] 
paid."  Now  nothing  more  need  be  said  on  this 
subject  of  jurisdiction,  except  perhaps  to  give  a 
proper  construction  to  the  proviso  in  the  last  clause 
of  the  section,  as  some  might  suppose  that  the  legis- 
lature had  made  so  absurd  a  law  as  to  tie  up  the 
hands  of  the  courts  of  equity,  as  well  as  all  other 
courts,  in  all  cases  of  legacies,  no  matter  how  compli- 
cated, extraordinary  or  difficult  the  case  might  be, 
whether  involving  a  construction  of  the  will  or  not,  till 
the  court  of  probate  had  made  an  order  for  the  pay- 
ment of  the  legacy,  thus  making  the  court  of  chancery 
a  mere  instrument  in  the  hands  of  the  Probate  Court, 
to  carry  into  etfect  its  orders  and  judgment.  Such  a 
construction  should  not  be  adopted,  unless  the  lan- 
guage of  the  law  will  admit  of  no  other.  In  this 
case,  however,  we  think  we  may  safely  say,  that 
the  legislature  meant  no  such  thing.  In  the  preced- 
ing part  of  the  section,  two  modes  are  prescribed  for 
enforcing  the  payment  of  the  legacies,  one  by  action 
of  account  and  the  other  by  suit  in  equity;  and  the 
proviso  declares  that  before  any  action  shall  be  com- 
menced for  legacies  as  aforesaid,  an  order  shall  be 
made  by  the  Probate  Court,  etc..  This  clearly  applies 
only  to  cases  where  the  action  of  account  shall  be 
commenced,  for  the  term  action  is  never  properly  ap- 
plied to  a  suit  in  equity,  nor  is  suit  a  proper  designa- 
tion for  an  action  of  account.  The  proviso,  therefore, 
does  not  apply  to  a  suit  in  equity  to  enforce  the  pay- 
ment of  a  legacy. 

It  is  next  objected  that  the  husband  of  the  complain- 
ant should  have  joined  her  in  the  bill.  The  objection 
would  have  been  fatal  beyond  all  doubt  if  the  answer 
had  only  shown  that  she  had  a  husband  living.  Ap- 
parently, not  with  a  view  of  showing  a  want  of  proper 
parties,  but  for  the  purpose  of  presenting  an  excuse 
for  not  paying  the  annuity,  the  answer  states  that  the 


292 

complainant  was  married  to  one  Mahar  in  1831  or  1832, 
but  it  does  not  state  that  lie  is  still  living.  If  he  had 
been,  we  are  not  to  presume  that  the  answer  would 
have  omitted  to  state  it.  Like  any  other  pleading, 
nothing  is  to  be  presumed  in  favor  of  the 
[*430]  answer.  By  the  same  rule,  had  the  bill  shown 
the  marriage  to  Mahar,  it  would  probably  have 
been  necessary  to  have  went  on  and  shown  a  sufficient 
reason  for  not  making  him  a  party. 

We  will  next  inquire  into  the  proper  construction  of 
this  will,  or  that  portion  of  it  which  is  relied  upon 
as  the  foundation  of  this  suit.  I  have  before  shown 
that,  by  taking  the  estate  devised  to  him,  he  assumed 
to  pay  the  legacies  imposed  upon  him  by  the  will. 
Messenger  v.  Andrews,  4  Eng.  Ch.  E.  479.  It  is, 
therefore,  only  necessary  to  inquire  what  the  com- 
plainant is  entitled  to  under  the  will. 

It  is  insisted  upon  by  the  counsel  for  the  complain- 
ant that  he  was  only  bound  to  provide  her  with  a  house, 
and  furnish  her  with  the  provisions  during  the  time 
that  she  resided  by  herself,  in  the  house  built  for 
her,  and  not  after  her  marriage  to  Mahar.  This  is 
the  clause  relied  upon:  "But  in  case  my  wife  shall 
choose  to  separate  from  them  (James  and  the  other 
children)  and  desire  a  residence  to  herself,  I  direct 
that  my  son  James  shall  build  her  a  comfortable  dwell- 
ing house,  on  his  part  of  the  land  above  given  him, 
convenient  to  a  good  spring  of  water,  and  to  deliver 
to  her  one  hundred  bushels  of  corn,  and  twenty  bushels 
of  wheat,  and  five  hundred  pounds  weight  of  good 
pork  annually."  To  say  that  the  testator  intended 
that  she  should  have  the  provisions  no  longer  than 
she  lived  in  the  house  by  herself,  is  almost  as  unrea- 
sonable as  to  say  that  she  was  not  intended  to  have 
the  house  any  longer  than  she  should  eat  all  the  pro- 
visions herself.  It  cannot  be  presumed  that  he  in- 
tended to  compel  her  to  reside  in  that  house,  whether 
it  suited  her  convenience  or  not.  By  residing  to  her- 
self, is  only  meant  a  residence  away  from  the  family 
of  the  defendant.  A  refusal  to  enjoy  one  portion  of 
the  provision  did  not  deprive  her  of  her  right  to  the 


293 

other;  nor  can  we  reasonably  infer  that  the  testator 
intended  to  prohibit  her  marrying,  should  she  desire  to 
do  so,  by  limiting  this  bounty  to  her  during  her  widow- 
hood. The  law  is  averse  to  any  provision  in  a  will 
or  other  instrument  in  restraint  of  marriage,  as  being 
against  the  interest  of  the  state,  and  it  will  not  attrib- 
ute any  such  intention  to  the  testator,  unless  his  lan- 
guage will  bear  no  other  reasonable  construc- 
tion. If  a  testator  design  to  exercise  a  control  [*431] 
over  the  acts  and  happiness  of  those  who  shall 
live  after  him,  not  for  their  own  good,  but  from  mere 
caprice,  or  from  an  apprehension  that  he  may  be  for- 
gotten, he  must  at  least  manifest  such  an  intention 
clearly,  or  else  we  cannot  attribute  to  him  such  a  de- 
sign. While  it  may  be  admitted  that  a  testator  may 
impose  reasonable  restraints  upon  his  legacies,  against 
improvident  marriages,  yet  there  are  many  cases  which 
show  that  an  absolute  prohibition  of  marriage  will  be 
disregarded,  either  in  a  bequest  or  a  gift;  and  such 
may  be  the  law  as  a  general  rule,  yet  it  is  said,  and 
I  think  with  truth,  that  an  annuity  to  a  widow  during 
widowhood  is  not  void  by  the  common  law,  although 
it  generally  was  by  the  civil  law  (1  Story's  Eq.  Jur., 
sec.  285,  note  4) ;  but  such  conditions  are  held  to  great 
rigor  and  strictness.  Long  v.  Dennis,  4  Burr.  2055; 
Parsons  v.  Winslow,  6  Mass.  169.  However,  as  this 
question  in  its  full  extent  does  not  necessarily  arise 
in  the  decision  of  this  case,  I  shall  refrain  from  a  re- 
view of  the  authorities  on  the  subject,  or  from  attempt- 
ing to  point  out  the  mere  distinctions  wlich  will  be 
found  to  prevail  on  this  subject.  Enough  has  been 
said  to  show  that  by  no  legal  or  reasonable  construc- 
tion does  this  will  provide  that  this  annuity  was  lim- 
ited to  her  during  her  widowhood;  and  this  legacy 
was  far  from  being  a  gratuity  to  the  complainant,  and 
at  the  expense  of  the  defendant,  for  by  accepting  it 
she  has  lost  her  right  of  dower,  which,  if  we  may  judge 
from  what  appears  in  the  record,  would  have  been 
of  vastly  greater  value  than  this  pittance  of  about  $60 
a  year,  and  the  use  of  a  house ;  and  this  loss  of  dower 
has  been  a  direct  gain  to  the  defendant,  who  took  the 


294 

lands  discharged  of  it,  so  that  he  received  directly 
from  her  ranch  more  than  an  ample  consideration  for 
all  that  she  claims  of  him;  and  it  does  seem  to  me 
that  it  is  most  ungracious  in  him  to  refuse  to  pay 
this  small  annuity,  yet  it  is  his  right,  if  he  thinks  he 
has  a  legal  defense,  to  make  it,  j^et  certainly  he  ought 
not  to  expect  a  very  strained  construction  in  his  favor. 
What  has  been  already  decided  substantially  deter- 
mines this  case  without  looking  particularly  into 
[*432]  the  depositions,  for  although  the  defendant  de- 
nies that  the  estate  which  he  received  by  the  will 
was  worth  $5,000,  as  charged  in  the  bill,  yet  he  has  not 
stated  how  much  less  it  was  worth.  The  proof,  how- 
ever, is  that  it  was  worth  at  least  $3,000 ;  but  I  appre- 
hend that  this  makes  but  very  little  difference.  Some 
question  was  also  made  on  the  argument  as  to  the 
sufficiency  of  the  demand  made  of  the  defendant  for 
the  annuity,  yet  the  demand  is  not  only  sufficiently 
established  by  the  proof,  but  the  defendant,  in  his 
answer,  admits  that  he  has  refused  to  pay  it  ever  since 
her  removal  from  the  house  which  he  built  for  her, 
and  since  the  time  charged  in  the  bill. 

The  case  made  by  this  bill  vests  the  court  with  the 
right,  not  only  to  declare  the  right  of  the  complainant 
to  an  annuity  for  life,  but  to  secure  and  enforce  its 
payment,  as  well  for  the  future  as  for  the  past,  which 
may  be  well  done  here  under  the  general  prayer,  and 
in  this  case  most  particularly  should  it  be  done,  to 
avoid  the  expense  and  vexation  of  an  annual  suit  to 
recover  the  annuity  as  it  may  fall  due.  The  decree 
of  the  Circuit  Court  must  be  reversed  and  the  cause 
remanded,  with  directions  to  that  court  to  enter  a  de- 
cree declaring  the  complainant  to  be  entitled  to  the 
use  of  the  dwelling  house  mentioned  in  the  pleadings, 
which  was  built  for  her  by  the  defendant,  during  her 
natural  life;  also  that  she  is  entitled  to  recover  of  the 
defendant  the  value  of  the  said  annuity  of  corn,  wheat 
and  pork,  from  and  including  the  year  1831,  till  the 
time  of  filing  this  bill;  also  that  she  is  entitled  to  re- 
cover, in  like  manner,  the  said  annuity  from  the  said 
defendant  from  the  time  of  the  commencement  of  the 


295 

said  suit  up  to  the  time  of  rendering  said  decree,  in 
case  it  shall  be  found  that  the  said  defendant  has  re- 
fused to  pay  said  annuity  in  kind,  according  to  the 
directions  of  said  will;  and  if  there  has  been  no  such 
refusal,  then  she  is  entitled  to  receive  the  amount  of 
said  annuity  in  kind,  during  the  time  aforesaid,  of  the 
said  defendant ;  also  that  she  is  entitled  to  receive  from 
the  said  defendant  the  said  annuity  in  kind  of  the  said 
Court  have  an  account  taken,  to  ascertain  the  amount 

due  the  complainant  up  to  the  time  of  rendering 
[*433]  said  decree,  either  in  money  or  in  kind,  and  that 

it  enforce  the  payment  thereof,  either  by  execu- 
tion or  attachment,  as  the  case  may  require ;  and  also 
that  the  Circuit  Court  enforce  the  payment  of  the  said 
annuity  by  the  said  defendant,  from  time  to  time  as  it 
may  fall  due,  either  by  attachment  or  otherwise,  as  the 
case  may  require,  upon  proper  application,  made  by 
the  said  complainant  under  that  decree,  and  that  the 
defendant  pay  the  costs.  As  it  was  stated  upon  the 
argument  by  the  complainant's  counsel,  that  the  de- 
fendant is  amply  responsible,  the  decree  need  not 
make  the  said  annuity  a  lien  upon  the  land  devised 
to  the  said  defendant  in  and  by  said  will,  unless  it 
shall  be  found  to  be  necessary  by  a  subsequent  appli- 
cation to  be  made  to  the  Circuit  Court. 

The  decree  of  the  Circuit  Court  is  reversed  with 
costs,  and  the  cause  remanded  with  directions  for  fur- 
ther proceedings  according  to  this  opinion. 

Decree  reversed. 


DOWDEN  V.  WILSON, 

108  111,  257. 

(1884.) 

Mr.  Justice  Walker  delivered  the  opinion  of  the 
court. 

Appellee  in  this  case  filed  a  l)ill  in  the  Ford  Circuit 
Court,  against  appellants,  to  foreclose  a  mortgage 
given  on  a  tract  of  land  in  that  county,  to  secure 
three  promissory  notes,  amounting  in  the  aggregate 


296 

to  $1,000.  This  is  a  second  suit  commenced  in  that 
court  to  foreclose  the  same  mortgage.  The  first  bill 
was  filed  by  the  same  complainant  against  the  same  de- 
fendants. That  case  was  heard,  a  decree  rendered, 
and  appealed  to  this  court,  where  the  decree  was  re- 
versed, and  the  cause  ordered  to  be  remanded,  but 
the  order  was  not  applied  for  or  issued  within  two 
years,  and  the  case  became  discontinued. 

On  the  trial  of  this  case  it  was  proved  that  the 
records  and  files  of  the  former  case  were  destroyed 
by  the  burning  of  the  clerk's  office  of  that  court.  On 
the  hearing  appellants  oifered  and  read  in  evidence 
copies  of  two  depositions  of  defendant  Dowden,  taken 
and  read  in  evidence  on  the  trial  in  the  former  case. 
The  copies  were  from  the  transcript  of  the  record  in 
this  court,  and  were  properly  certified  to  be  true  copies 
by  the  clerk  of  this  court.  They  were  read  on  the 
hearing,  subject  to  the  objections  of  complainant. 
There  had  been  filed  among  the  papers  of  this  case, 
at  or  before  the  hearing,  an  agreement  between  counsel 
of  the  respective  parties  that  counsel  for  defendants 
might,  on  the  hearing,  read  the  transcript  of  the  record 
in  this  court,  but  being  unable  to  procure  leave  to 
withdraw  it  for  the  purpose,  on  an  application  he  pro- 
cured the  copies  thus  certified,  and  complainant's  coun- 
sel objected  because  they  were  copies.  In  deciding  the 
case  the  court,  it  is  claimed,  declined  to  consider  the 
copies  of  these  depositions.  When  the  case  was  heard 
and  submitted  at  the  April  term,  1882,  the  court  took 
the  case  under  advisement,  to  be  decided  in  vacation, 
and  on  the  30th  day  of  August  following  a  final  decree 
foreclosing  the  mortgage  was  filed,  entitled  of  the  pre- 
ceding April  term,  and  recorded  by  the  clerk  as  of 
that  term.  Subsequently  appellants'  counsel,  on  the 
4th  day  of  October,  1882,  applied  to  the  judge  in  vaca- 
tion for  an  order  for  a  rehearing,  but  the  application 
was  denied,  and  defendants  perfected  an  appeal  to  the 
Appellate  Court  for  the  Third  District,  where  the  de- 
cree of  foreclosure  was  affirmed,  and  they  appeal  to 
this  court. 

The  first  question  we  shall  consider  is,  whether  the 


297 

judge  erred  in  refusing,  on  the  application  in  vacation, 
to  grant  a  rehearing  of  the  case.  We  regard  the  47th 
section  of  chapter  37  as  settling  the  practice  in  such 
cases.  It  provides  that  where  a  cause  or  matter  is 
taken  under  advisement,  and  it  is  decided  in  vacation, 
the  judgment,  decree  or  order  may  be  entered  of  record 
in  vacation,  but  such  judgment,  decree  or  order  may, 
for  good  cause  shown,  be  set  aside,  or  modified,  or 
excepted  to  at  the  next  term  of  the  court,  on  motion 
filed  on  or  before  the  second  day  of  the  term,  of  which 
the  oppsite  party,  or  his  attorney,  shall  have  reason- 
able notice,  and  if  not  so  set  aside  or  modified,  it 
shall  thereupon  become  final.  This  section  afforded 
appellants  the  opportunity,  at  the  December  term,  1882, 
to  apply  and  show  cause  for  setting  aside  the  decree 
and  obtaining  a  re-trial.  The  statute  does  not  con- 
template such  an  application  in  vacation,  nor  can  we 
see  the  slightest  necessity  for  such  a  practice,  as  all 
can  be  had  by  an  application  in  term  time  that  could 
be  in  vacation.  Where  the  statute  has  prescribed  one 
mode  of  accomplishing  a  purpose,  which  is  full  and 
complete,  it  must  be  presumed  that  other  modes  were 
intended  to  be  excluded.  Nor  were  defendants  de- 
prived of  this  right  by  the  decree  being  entitled  of, 
and  the  clerk  recording  it  as  of,  the  April  term.  That 
could  be  done  only  as  prescribed  by  the  48tli  section 
of  the  same  act.  That  section  requires  the  consent  of 
the  parties  to  authorize  a  decree  rendered  in  vacation 
to  be  entered  as  a  decree  of  the  term  at  which  the 
case  was  submitted  and  taken  under  advisement.  The 
record  in  this  case  shows  no  such  agreement,  and  inas- 
much as  appellants  took  no  steps  to  set  aside  the  de- 
cree at  the  December  term,  they  have  waived  all  right 
to  have  the  decree  set  aside,  and  to  have  a  re-trial. 

Inasmuch  as  the  copies  of  the  depositions  of  Dowden 
were  read  in  evidence,  they  must  be  considered,  unless 
complainant's  objection  was  well  taken.  Were  they 
properly  admitted  under  the  agreement  that  the  record 
might  be  read"?  We  think  they  were.  In  substance 
and  in  fact  there  was  not  a  particle  of  difference  be- 
tween that  portion  of  the  transcript  and  the  true  copies 


298 

that  were  read.  It  is  a  mere  quibble  to  say  that  the^' 
are  not  the  same  in  substance,  or  to  say  that  complain- 
ant was  taken  by  surprise,  or  that  he  sustained  a  par- 
ticle of  injury  by  reading  the  copies  instead  of  the 
originals  as  contained  in  the  transcript  on  file  in  this 
court.  Although  copies  were  not  specifically  named 
in  the  agreement,  they  were  within  the  implication  and 
spirit  of  the  agreement,  and  were  properly  admitted, 
and  should  have  been  considered  by  the  court  below. 
But  we,  on  an  appeal  in  a  chancery  case,  consider  all 
the  evidence  properly  in  the  record,  and  must  consider 
the  depositions  in  connection  with  the  other  legtimate 
evidence  in  the  case. 

Having  disjoosed  of  these  preliminary  questions,  we 
shall  proceed  to  consider  the  case  on  its  merits.  Does 
the  evidence  sustain  the  decree?  There  is  no  question 
that  the  notes  were  given  for  the  purchase  of  a  patent 
right  to  a  brake  for  wagons,  etc.  There  was  no  other 
consideration  for  the  notes  or  the  mortgage  securing 
them.  Had  appellants  been  fully  satisfied,  the  brake 
was  worthless,  why  did  they  not,  in  the  years  that 
have  elapsed  since  the  decree  was  reversed,  have  a 
brake  constructed,  and  its  quality  fully  tested?  It 
would  have  required  but  slight  expense  or  trouble.  It 
was  not  done,  and  no  doul^t  because  it  would  in  all 
probability  have  proved  to  be  all  that  it  was  repre- 
sented. None  of  the  witnesses,  except  one,  pretend 
ever  to  have  seen  a  brake  made  from  this  model,  and 
he  only  saw  it  attached  to  a  wagon  standing  still.  It 
is  not  probable  that  he  could,  from  the  standing  wagon, 
form  a  correct  opinion  as  to  its  working  in  descend- 
ing a  hill,  when  its  operation  would  be  tested.  None 
of  the  other  witnesses  ever  saw  anything  more  than 
the  model,  and  they  say  that  they  had  seen  others 
that  were  worked  on  the  same  principle,  and  this  was 
worthless.  They  only  state  their  opinions.  They  do 
not  state  or  explain  the  principle,  or  give  any  reason 
why  it  would  not  work.  Although  they  say  they  are 
experts,  we  fail  to  see  they  were. 

Again,  independent  of  that,  the  defense  fails  for 
other  reasons.     It  is  claimed  that  the  invention  was 


299 

not  new,  and  that  fact  is  proved  by  the  evidence,  and 
not  being  true,  there  was  a  fraud  perpetrated  on  ap- 
pellants, and  the  consideration  had  failed.  On  turning 
to  the  answer  we  find  that  no  such  representation  is 
alleged  to  have  been  made  when  Wilson  purchased. 
The  allegations  and  proofs  must  agree  to  render  a 
defense  available.  Whatever  the  proofs  may  estab- 
lish, there  is  no  allegation  in  the  answer  that  the  patent 
was  represented  to  be  a  new  invention,  and  hence  this 
evidence  has  no  application  to  the  answer,  as  that  is 
not  set  up  as  a  defense.  The  other  representations 
were  only  such  as  are  usual  in  commending  an  article 
for  sale,  and  were  not  fraudulent,  and  require  no  fur- 
ther consideration.  Moreover,  appellants,  so  far  as 
we  can  see  from  the  record,  have  never  offered  to 
release  or  cancel  the  deed  conveying  to  them  the  right 
to  manufacture  and  vend  the  brake,  nor  do  they  offer 
in  their  answer  to  do  so,  but  so  far  as  we  can  see  they 
still  hold  the  right  to  manufacture  and  vend  the  brake. 
Even  if  there  was  fraudulent  representation  set  up  as 
a  defense,  or  failure  of  the  consideration  in  the  pur- 
chase, appellants  should  have  restored,  or  oft'ered  to 
restore,  the  title  to  the  patent  to  the  vendors.  They 
have  no  right  to  hold  that  and  escape  paying  the  con- 
sideration for  the  notes  and  mortgage.  What  else  the 
proofs  may  show,  there  is  no  allegation  or  proof  that 
the  title  was  reconveyed,  or  offered  to  be  reconveyed. 
This,  of  itself,  precludes  appellants  from  insisting  upon 
the  defense. 

For  these  reasons  the  decree  of  the  court  below  is 
affirmed. 

Decree  affirmed. 


ASHMORE  V.  HAWKINS. 

145  111.  447. 

(1893.) 

Wilkin,  J.  It  appears  from  the  record  that  on  the 
trial  more  than  fifty  witnesses  testified  before  the  jury, 
about  an  equal  number  testifying  on  behalf  of  either 


300 

party.     The  principal  question  submitted  to  this  court 
is,  does  the  evidence  sustain  the  decree?     And  the  de- 
cision of  that  question  depends  upon  whether  the  proof 
of  the  mental  incapacity  of  James  Hopkins  produced 
upon  the  trial  was  sufficient  to  authorize  the  verdict 
of  the  jury.     We  have  examined  the  evidence  bearing 
on  this  question,  and,  weighing  it,  as  we  are  compelled 
to  do,  without  reference  to  the  appearance  and  conduct 
of  the  witnesses  on  the  stand,  are  of  the  opinion  that, 
if  no  other  evidence  had  been  submitted  to  the  jury 
than  that  introduced  by  the  complainants,  it  would 
have  been  justified  in  finding  as  it  did.     The  evidence 
of  the  witnesses  is  in  irreconcilable  conflict.     We  think 
the  fact  that  the  grantor  was  mentally  and  physically 
enfeebled  by  old  age  at  the  time  he  made  the  deeds 
in  question  was  clearly  proved,  but  whether  that  en- 
feebled condition  had  reached  the  point  of  incapacity 
to  transact  the  ordinary  business  affairs  of  life,  is  by 
no  means  clear.     The  court  below  and  jury  saw  all 
the  witnesses,  and  heard  them  testify,  and  were  better 
able  to  judge  of  the  weight  of  their  testimony  than  is 
this  court.     Speaking  on  this  subject  in  the  recent  case 
of  Wilbur  V.  Wilbur,  138  111.  446,  27  N.  E.  Rep.  701, 
we  said,  repeating  what  had  been  frequently  said  be- 
fore:    "It  was  therefore  the  jorovince  of  the  jury  to 
determine  which  was  entitled  to  the  greater  weight, 
and  in  such  case  this  court  will  not  interfere,  even 
though,    as    an   original   proposition,    it   might   have 
arrived  at  a  different  conclusion.     This  rule  is  so  well 
established,  and  supported  by  so  many  decisions  of 
this  court,  that  neither  reason  nor  authority  need  be 
given  for  applying  it  to  this  case."     The  same  lan- 
guage must  be  applied  to  the  present  case. 

Counsel  for  appellants  contend  that  the  court  below 
erred  in  not  providing  in  its  decree  for  the  repay- 
ment of  $100  per  year  paid  by  them  since  the  year 
1885,  as  well  as  taxes  paid  on  the  land  conveyed  to 
them.  As  to  this  point  it  is  only  necessary  to  say  that 
no  such  affirmative  relief  was  asked  by  the  pleadings. 

There  being  no  errors  of  law  insisted  on  by  appel- 
lants, as  to  the  admission  or  exclusion  of  testimony, 


301 

or  to  the  giving  or  refusing  of  instructions,  and  the 
evidence  being  sufficient,  under  the  above  stated  rule, 
to  support  the  verdict  of  the  jury,  the  decree  of  the 
Circuit  Court  must  be  affirmed. 


CUMMINS  V.  CUMMINS, 

15  111.  34. 

(1853.) 

ScATES,  J.  This  bill  was  filed  by  the  ward  against 
the  testamentary  guardian  for  an  account,  charging 
that  lands  and  moneys  had  come  into  his  hands  as 
guardian. 

The  guardian  answers,  admitting  that,  in  recover- 
ing the  estate  of  the  ward  out  of  the  hands  of 
the  executor  of  the  will,  *he  had  acquired  title  to  [*34] 
certain  lands  purchased  under  an  execution  on 
a  judgment  against  the  executor  for  $418.75,  and  con- 
veyed to  him  on  7th  November,  1843.  He  admits  assets 
to  the  value  of  this  land  to  be  $427.12,  and  then  states 
and  sets  up  an  account  for  maintenance  and  educa- 
tion and  expenses  exceeding  the  assets. 

The  cause  was  heard  upon  bill,  answer,  replication, 
and  exhibits,  without  proofs,  and  the  bill  dismissed. 

This  is  erroneous,  according  to  the  rules  of  pleading ; 
the  answer  is  evidence  only  so  far  as  it  is  responsive 
to  the  allegations  of  the  bill;  so  far  as  matters  in  dis- 
charge are  stated  in  the  answer,  they  must  be  proved, 
unless  in  cases  where  the  same  matter  or  statement 
that  creates  the  charge  shows  also  its  discharge.  Here 
it  was  a  distinct  and  independent  matter,  and  should 
have  been  proven.  12  Pet.  R.  191 ;  1  Greenl.  Ev.,  sec. 
351;  2  Story's  Eq.  Jur.,  sees.  1528,  1529.  Upon  these 
principles  complainant  was  entitled  to  a  decree  for 
an  account. 

The  dismissal  was  erroneous  in  another  respect. 
Courts  of  equity  exercise  a  strict  supervision  over  the 
expenditures  of  guardians,  requiring  the  application 
of  the  income  of  the  estate  to  the  support  and  educa- 
tion of  the  ward  to  be  satisfactorily  shown,  so  far  as 


302 

needed  for  that  purpose,  and  the  surplus,  if  any,  to  be 
kept  productive.  But  they  seldom  sanction  the  use 
of  the  principal,  even  for  these  purposes,  unless  a  very 
clear  case  of  its  necessity  is  made  out  to  the  court  for 
so  ordering.  2  Fonbl.  Eq.  473,  474;  Davis,  Adm'r,  v. 
Harknesse  et  al.,  1  Gilm.  R.  177;  Davis  et  al.  v.  Rob- 
erts, 1  S.  &  M.  553. 

Much  stricter  still  is  the  rule  when  a  guardian  breaks 
it  upon  the  principal,  without  first  obtaining  an  order 
of  a  proper  court  authorizing  him  to  do  so.  1  Gilm. 
R.  177. 

The  decree  is  reversed  and  the  cause  remanded. 

Decree  reversed. 


SWIFT  V.  SCHOOL  TRUSTEES, 

14  111.  493. 

(1853.) 

Treat,  C.  J.  This  was  a  bill  in  chancery  to  foreclose 
a  mortgage,  brought  by  the  trustees  of  schools  against 
Palmer,  Rue,  Morris,  and  Swift.  The  bill  set  forth 
the  execution  of  a  mortgage  by  Palmer  to  the  com- 
plainants ;  a  conveyance  of  the  premises  by  Palmer  to 
Rue,  subject  to  the  mortgage;  a  conveyance  by  Rue  to 
Donnell;  and  a  conveyance  by  the  latter  to  Morris  in 
trust  for  Swift,  both  of  whom  had  notice  of  the  mort- 
gage. The  bill  was  taken  for  confessed  against  Palmer 
and  Rue.  Morris  and  Swift,  in  their  answers  on  oath, 
expressly  denied  all  notice  of  the  mortgage.  A  decree 
of  foreclosure  was  entered,  and  Morris  and  Swift  sued 
out  a  writ  of  error. 

As  the  mortgage  was  not  registered,  the  defendants 
had  no  notice  of  its  existence  from  the  records.  The 
bill  alleges  that  the  conveyance  to  Rue  was  made  sub- 
ject to  the  mortgage;  and  as  the  defendants  derive 
title  through  him,  it  may  perhaps  be  that  such  a  con- 
dition in  the  deed  would  operate  as  notice  to  them 
of  the  mortgage.  But  the  deed  was  not  produced  in 
evidence,  and  there  is  nothing  in  the  case  to  sustain 
this  allegation.    The  only  proof  to  establish  the  charge 


303 

of  notice  consists  of  the  testimony  of  a  single  witness. 
That  is  not  sufficient  against  the  sworn  statements  of 
the  answers.  The  allegation  of  notice  is  distinctly  de- 
nied in  the  answers.  That  part  of  the  answers  is 
clearly  responsive  to  the  bill,  and  is  evidence  for  the 
defendants.  And  it  must  prevail,  unless  the  complain- 
ants sustained  the  charge  of  notice  by  two  witnesses, 
or  by  one  witness  and  strong  corroborating  circum- 
stances. Such  is  the  well  established  rule  of  equity. 
The  testimony  of  one  witness  is  not  sufficient  to  over- 
come the  positive  denial  of  a  material  allegation  of  a 
bill.     The  effect  of  the  answer  is  only  neutralized  by 

the  opposing  testimony  of  a  single  witness.    It 
[*495]   is  but  oath  against  *oath.     Further  testimony 

is  necessary  to  incline  the  scale,  and  give  a  pre- 
ponderance on  the  side  of  the  complainant. 

The  decree  is  reversed,  and  the  cause  is  remanded. 

Decree  reversed. 


WALLWORK  V.  DERBY, 

40  111.  527. 

(1866.) 

Me.  Justice  Breese  delivered  the  opinion  of  the 
court. 

This  record  presents  but  one  point  which  we  deem 
worthy  of  consideration. 

Two  separate  tracts  of  land,  particularly  described 
by  their  government  numbers,  were  conveyed  by  Road- 
night  and  wife  to  Monroe,  in  trust,  to  sell,  in  the  event 
that  certain  notes  Roadnight  had  executed  to  Derby 
were  not  paid.  The  lands  were  again  sold  by  Road- 
night  to  the  complainant,  Wallwork,  described  as  in 
the  deed  to  Monroe,  subject  to  this  deed. 

In  the  deed  to  Monroe  is  this  clause: 

"And  also  to  sell  said  premises  entire,  without  divi- 
sion or  in  parcels,  as  the  said  party  of  the  second  part 
(Monroe)  may  think  best." 

Under  the  power  to  sell,  contained  in  the  deed  with 
this  clause  in  it,  one  note  for  $1,800,  remaining  due 


304 

to  Derby,  and  unpaid,  Monroe,  the  trustee,  at  Derby's 
request,  advertised  the  land,  as  described  in  the  deed, 
to  be  sold  at  public  auction.  At  this  sale  it  appears 
in  the  recitals  of  Monroe's  deed  that  Derby  "bid  for  the 
tract  first  hereinafter  named,  the  sum  of  $1,600. ' '  The 
tract  first  thereinafter  named  in  the  deed  is  the  east  half 
of  the  S.  E.  32,  town  42,  N.  range  11,  east  of  the 
tliird  principal  meridian.  This  is  the  tract  Derby  bid 
off,  but  the  trustee  conveyed  to  him  in  addition  the 
other  tract,  viz. :  All  that  portion  of  the  east  half 
of  N.  E.  of  32,  lying  south  of  the  railroad,  as  it 
crossed  that  section  on  the  10th  day  of  July,  1862,  con- 
taining 100  21/100  acres,  more  or  less. 

The  theory  of  appellees  is  that  the  two  tracts  were 
but  one  parcel  of  land,  and  constituted  a  farm,  on 
which  there  were  no  division  fences,  or  visible  divid- 
ing lines,  and  that  a  bid  for  one  of  the  tracts  covered 
the  other  of  necessity.  That  both  together  made  up 
"the  premises,"  which  the  trustee  advertised,  and  in- 
tended to  and  did  sell. 

This  does  not  appear  from  any  of  the  deeds.  They 
all  describe  two  distinct  parcels  of  land,  containing  in 
the  aggregate  120  20/100  acres.  They  were  "the  prem- 
ises" authorized  to  be  sold,  with  no  recital  that  they 
made  a  farm,  or  were  united  for  any  practical  pur- 
pose. No  information  by  the  deed  or  by  the  advertise- 
ment of  sale  by  the  trustee,  that  they  were  any  other 
than  two  separate  but  adjoining  tracts  of  land,  con- 
taining together  a  certain  number  of  acres.  Nor  does 
it  appear  that  any  notice  was  given  that  they  would 
be  sold  together  as  a  farm. 

What,  then,  did  Derby  buy?  Can  it  be  said  he 
bought  anything  more  than  he  bid  for?  Bidding  for 
the  first  described  tract,  and  being  the  highest  bidder, 
entitled  him,  possibly,  to  a  deed  for  that  tract,  but 
what  right  did  it  confer  upon  the  trustee  to  throw  in 
the  other  tract  gratuitously?  Derby  did  not  bid  on 
that,  nor  did  he  bid  on  the  premises  taken  as  a  whole, 
but  he  bid  for  the  first  described  tract  only.  The  last 
described  tract  was  not  offered  for  sale.  AVe  are  at  a 
loss  to  perceive  the  right  of  the  trustee  to  convey  to 


305 

him  both  tracts  when  he  only  purchased  one.  "VVe  think 
the  trustee  has  not,  in  this,  executed  the  power.  He 
could  sell  the  property  entire  or  in  parcels.  His  deed 
should  show  how  he  sold  it.  By  reference  to  that,  it 
appears  he  offered  the  premises  as  an  entirety,  and 
Derby  bid  for  one  tract  composing  a  portion  of  the 
premises,  and  received  a  deed  for  the  whole  premises. 
Counsel  for  appellees  say  the  deed  was  written  on  an 
ordinary  printed  blank  form,  and  the  blanks  filled  up 
as  circumstances  required,  and  that  in  the  printed 
part  of  the  recitals  contained  in  this  deed,  and  before 
the  premises,  occur  the  terms  to  which  we  have  ad- 
verted, "and  bid  for  the  tract  first  hereinafter  named 
the  sum  of,"  etc. 

Is  not  the  printed  part  of  a  deed  as  much  a  part 
of  the  deed  as  the  written  portion,  and  is  not  a  party 
as  strongly  bound  by  the  printed  as  by  the  written 
parts?  After  this  recital  comes  the  granting  clause, 
by  which  there  is  granted  to  Derby,  on  his  bid  for 
one  tract,  all  those  certain  tracts,  pieces  or  parcels 
of  land  situated,  etc.,  and  described  as  follows,  to-wit : 
The  east  half  of  the  southeast  quarter  of  section  32, 
town  42  N.  range  11  west;  and  also  that  portion  of 
the  east  half  of  N.  E.  32  lying  south,  etc.  Had  bid- 
ders been  apprised  by  the  notice  that  the  purchaser 
of  one  tract  would  be  entitled  to  both  tracts,  and  that 
they  formed  but  one  parcel,  bidding  would,  doubtless, 
have  been  more  spirited,  but  no  such  fact  was  noti- 
fied to  the  public,  nor  does  the  trust-deed,  in  any  part 
of  it,  state  that  those  tracts  of  land  constituted  but 
one  parcel,  occupied  as  a  farm.  Had  the  notice  of 
sale  so  stated,  and  the  deed  of  the  trustee  recited 
the  fact,  that  the  tracts  were  offered  for  sale  as  one 
parcel,  a  sale  under  the  general  description  of  prem- 
ises would,  perhaps,  have  included  both  tracts.  It  is 
said  by  appellees  that  it  was  a  mere  blunder  of  the 
scrivener  who  drew  the  deed  that  the  obnoxious  word, 
"first,"  was  not  stricken  out,  and  that  no  equities 
on  the  part  of  appellant  could  grow  up  out  of  such 
a  blunder,  and  that  the  assumption  of  appellant  that 
he  has  such  an  equity  is  a  very  extraordinary  assump- 


306 

tion  in  the  face  of  the  deed  itself,  the  sworn  and  un- 
contradicted answers  of  the  defendants,  and  proofs 
in  the  case.  Again,  appellees  say  that,  upon  the  face 
of  the  deed  itself,  it  plainly  appears  Monroe  sold,  and 
Derby  purchased  the  entire  premises  therein  described, 
and  not  a  part.  And  to  substantiate  this,  they  propose 
to  leave  out  of  view  their  sworn  and  uncontradicted 
statements  in  their  answers,  and  consider  only  the 
proper  construction  to  be  placed  on  those  deeds. 

Again,  they  say,  "thus  far  we  have  been  consider- 
ing the  case  upon  the  hypothesis  that  the  deed  itself 
was  the  only  evidence  in  the  case  of  the  intention  of 
the  parties  thereto.  But,  when  we  take  one  step  fur- 
ther, and  glance  into  the  record,  we  there  find  that  the 
bill  is  not  only  filled  with  foul  charges,  but  wishing 
to  purge  the  conscience  of  the  defendants,  asks  for 
a  discovery  under  oath,  and  this  the  defendants  have 
fully  and  fairly  given,  making  plain,  beyond  a  doubt 
or  question,  that  which  might  otherwise  be  considered 
as  debatable." 

Again,  they  say,  under  the  same  head  of  argument: 
"Here,  then,  in  addition  to  the  deed  itself,  are  the  an- 
swers of  these  two  defendants  called  for  and  given  under 
oath,  directly  responsive  to  the  bill,  uncontradicted  and 
uncontradictable,  asserting,  not  merely  as  a  matter  of 
opinion,  but  proving  absolutely,  as  a  matter  of  fact,  that 
the  trustee  oif ered  for  sale  and  sold,  and  the  defendant 
Derby  purchased  and  paid  for,  the  entire  lands  de- 
scribed in  the  deed."  And,  in  support  of  this,  they 
refer  to  the  old  rule  of  chancery  practice,  tliat,  where 
an  answer,  thus  called  for  under  oath,  is  responsive  to 
the  bill,  it  shall  be  taken  as  true,  unless  disproved  by 
two  witnesses,  or  by  one  witness  and  pregnant  circum- 
stances to  overthrow  and  disprove  it. 

And,  on  the  point  of  tender  alleged  by  complainant, 
appellees  say :  ' '  Derby,  in  his  answer  under  oath,  says, 
etc."  And,  again:  "Here,  then,  we  have  the  sworn 
answers  of  both  defendants,  denying  positively  and 
unequivocally  these  statements  in  the  bill." 

We  have  made  these  quotations  from  the  printed 
argument  of  appellees  for  the  purpose  of  making  some 


307 

strictures  thereon,  which  they  seem  to  require.  We 
cannot  believe  it  was  the  hope  or  design  of  appellees 
to  impose  upon  the  court,  by  attempting  to  pass  their 
answers  upon  the  court  as  having  the  character  they 
have  given  them,  and  exalting  what  is  mere  pleading 
to  the  dignity  of  evidence,  and  alleging  that  such  an- 
swers were  called  for  by  complainant  in  his  bill.  We 
must  believe,  out  of  the  high  respect  we  entertain  for 
the  counsel  of  appellees,  that  their  treatment  of  these 
answers,  as  answers  under  oath,  and  as  such,  called 
for  by  complainant,  has  arisen  from  inadvertence,  with 
no  design  to  mislead  the  court,  or  to  derive  an  advan- 
tage to  which  the  law  does  not  entitle  them;  at  the 
same  time  we  cannot  but  express  our  surprise  they 
should  have  so  regarded  the  bill,  and  put  in  sworn 
answers,  when,  in  the  bill,  are  found  these  statements : 
''That  they,  and  each  of  them,  be  required  to  answer 
all  and  singular  the  matters  and  allegations  herein- 
before set  forth,  according  to  the  rules  and  practice 
of  this  honorable  court,  without  ofith,  an  ansiver  under 
oath  being  hereby  expressly  waived." 

It  is,  as  we  have  had  occasion  heretofore  to  remark, 
bad  practice  to  put  in  sworn  answers  to  a  bill  wherein 
the  oath  of  the  defendant  is  expressly  waived,  and 
have  rebuked  counsel  for  so  doing.  But  they  derive 
no  advantage  from  it,  and  can  derive  none,  for  the 
court  will  certainly  find  out  the  true  nature  of  the 
pleadings,  and  never  suffer  what  is  but  pleading — 
the  mere  declarations  of  a  party — to  assume  the  char- 
acter of  evidence,  to  be  overcome  by  countervailing 
testimony. 

These  various  allegations,  then,  in  the  defendant's 
answers  are  in  no  sense  evidence;  they  are  mere  alle- 
gations of  pleading,  and  avail  nothing  as  evidence  for 
the  parties  making  them. 

Disregarding  the  answers,  the  case  must  rest  on 
the  naked  deed  from  the  trustee  to  Derby,  and  this 
most  unmistakably  recites  a  bid  of  $1,600,  $200  less 
than  the  amount  due  on  the  land,  for  the  first  named 
tract,  under  which  bid  the  trustee  conveyed  to  Derby 
both  tracts.     This  we  conceive  was  such  misconduct 


308 

on  the  part  of  the  trustee  as  to  compel  the  setting 
aside  the  sale.  We  say  nothing  on  the  point  of  in- 
adequacy of  price — that  of  itself  might  not  be  suffi- 
cient ground  for  our  interference.  Our  objection  rests 
on  the  simple  fact  that  the  trustee  has  conveyed  a 
tract  of  land  he  did  not  sell;  we  agree  to  the  rule, 
so  strenuously  urged  upon  our  attention,  that  the  in- 
tention of  parties  to  a  deed  must  prevail,  but  that 
intention  must  be  gathered  from  the  words  of  the  deed 
and  surrounding  circumstances.  The  words  in  this 
deed  are  express  and  unambiguous,  and  no  circum- 
stance attending  the  sale  invites  us  to  construe  the 
deed  differently  from  what  we  have  done.  The  decree 
is  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings consistent  with  this  opinion. 

Decree  reversed. 


ATKINSON  V.  CHICAGO  TIRE   &  SPRING  WORKS   BT  AL. 

138  111.  187. 

(1891.) 

Baker,  J.  In  a  suit  in  equity  brought  by  the  Linden 
Steel  Company,  Limited,  against  the  Chicago  Tire  & 
Spring  Works  and  others,  a  cross-bill  was  exhibited 
by  Frederick  M.  Atkinson,  the  appellant,  and  a  certain 
other  cross-bill  was  exhibited  by  Charles  H.  Ferry, 
one  of  the  appellees.  The  cause  was  heard  on  the  20th 
day  of  February,  1889,  upon  said  cross-bill,  and  upon 
the  amended  cross-bill  and  supplemental  cross-bill  of 
Atkinson,  and  the  amended  cross-bill  of  Ferry,  and 
the  answers  and  replications ;  and  a  decree  was  en- 
tered dismissing  the  cross-bill,  and  the  amended  and 
supplemental  cross-bills,  of  Atkinson  for  want  of 
equity;  and  the  finding  that  "the  agreement  referred 
to  in  said  Ferrj^'s  amended  cross-bill,  and  made  a 
part  thereof,  as  Exhibit  A,  was  executed  by  said  At- 
/kinson  and  said  Charles  H.  Ferry,  and  that  the  same 
is  an  existing  and  valid  agreement,  and  not  void  by 
reason  of  public  policy,  or  for  any  other  reason;  and 
that  said  Ferry  is  entitled  to  vote  the  said  500  shares 


309 

of  said  stock  of  the  Chicago  Tire  &  Spring  Works  be- 
longing to  Atkinson,  and  held  by  said  Ferry  under 
said  agreement,  until  said  $15,000,  with  interest 
thereon  at  the  rate  of  eight  per  cent,  per  annum,  shall 
have  been  repaid  to  said  Ferry,  as  provided  in  said 
agreement."  And  the  court  "further  ordered,  ad- 
judged, and  decreed  that  said  Charles  H.  Ferry  is 
entitled  to  vote  upon  the  500  shares  of  the  stock  of 
said  Atkinson  held  by  said  Ferry,  and  standing  in  his 
name  on  the  books  of  said  Chicago  Tire  &  Spring 
Works  under  said  agreement  of  September  10,  1881, 
between  said  Ferry  and  said  Atkinson,  until  said  sum 
of  $15,000,  with  interest  at  the  rate  of  eight  per  cent, 
per  annum,  shall  have  been  repaid  to  said  Ferry  in 
pursuance  of  said  agreement."  The  only  grounds 
urged  for  a  reversal  of  the  decree  rendered  upon  the 
cross-bills  are  that  there  is  no  evidence  in  the  record 
showing  that  the  contract  upon  which  the  decree  is 
predicated  was  ever  introduced  in  evidence,  and  that 
said  decree  does  not  state  that  any  evidence  was  heard 
in  support  thereof.  We  find  in  the  record  a  certificate 
of  the  evidence  which  was  heard  by  the  court  on  the 
17th  day  of  February,  1887,  and  more  than  two  years 
before  the  final  hearing  in  this  cause,  upon  a  motion 
for  an  injunction  upon  the  cross-bill  of  Ferry,  and  a 
motion  to  dissolve  the  injunction  theretofore  granted 
upon  the  cross-bill  of  Atkinson.  But  said  evidence 
consists  of  ex  parte  affidavits,  which  were  read  upon 
the  submission  of  said  motions,  and  it  does  not  appear, 
either  from  the  certificate  or  otherwise,  that  said  affi- 
davits were  either  read  or  considered  upon  the  final 
hearing.  Ex  parte  affidavits  produced  on  a  motion  to 
dissolve  an  injunction  cannot  be  read  as  evidence  on 
the  final  hearing,  except  by  consent  of  parties,  which 
should  appear  from  the  certificate  of  the  judge  who 
heard  the  cause.  Bressler  v.  McCune,  56  111.  475.  We 
may  therefore  consider  said  certificate  of  evidence  as 
eliminated  from  the  record. 

The  decree  appealed  from  is  of  a  twofold  character. 
In  the  first  place,  it  dismisses  the  cross-bills  of  appel- 
lant for  want  of  equity;  and,  in  the  second  place,  it 


310 

grants  relief  upon  the  cross-bills  of  Ferry.  In  respect 
to  the  decree  upon  the  cross-bills  of  appellant,  the 
case  of  Thomas  v.  Adams,  59  111.  223,  is  an  authority 
in  point.  There  the  answers  to  the  bill  of  complaint 
put  its  averments  in  issue,  and  the  record  contained 
no  evidence,  and  the  decree  failed  to  recite  that  the 
hearing  was  upon  evidence,  and  the  action  of  the  court 
below  dismissing  the  bill  was  sustained.  This  court 
in  that  case  said:  "If,  on  the  evidence  before  the 
chancellor,  complainant  believed  the  decree  was  er- 
roneous, he  should  have  had  it  embodied  in  a  certifi- 
cate signed  by  the  judge  who  tried  the  case.  We  must, 
in  the  absence  of  proof  presume  that  the  court  below 
decided  correctly  in  dismissing  the  bill.  Nor  was  it 
the  duty  of  the  defendants  to  preserve  complainant's 
evidence.  It  may  be  that  proof  was  heard  on  the 
trial,  but  it  does  not  appear  in  the  transcript.  We  fail 
to  find  any  error  in  the  record,  and  the  decree  of  the 
court  below  is  affirmed." 

In  respect  to  the  decree  in  the  cross-cause  of  Ferry, 
it  is  recited  therein  that,  said  cause  "coming  on  for 
final  hearing,  the  court  finds, ' '  etc. ;  setting  forth  the 
facts  as  hereinbefore  quoted  from  the  decree.  There  is 
no  recital  that  the  hearing  was  upon  evidence  or  upon 
proofs.  The  statement  in  the  transcript  is  simply 
that  the  court  "finds"  certain  specified  facts,  and 
those  facts  are  such  as  would  authorize  the  decree  that 
was  rendered.  If  evidence  was  necessary  to  justify 
the  findings  inserted  in  the  decree,  ought  it  to  be  pre- 
sumed, in  favor  of  the  validity  of  the  action  of  the 
trial  court,  that  it  did  hear  evidence?  There  can  be 
no  question  of  the  rule  in  this  state  that  in  all  chancery 
causes  either  the  evidence  to  support  the  decree  must 
appear  in  the  record,  in  some  mode  or  other,  or  else 
the  facts  upon  which  the  decree  is  based  must  be  found 
by  the  court.  In  Jones  v.  Neely,  72  111.  449,  it  was 
recited  in  the  decree  that  the  same  was  tried  on  bill, 
answer,  and  proofs,  and  that  a  special  master  was 
appointed  to  reduce  the  testimony  to  writing,  as  heard 
in  open  court.  In  these  respects  that  case  differs  from 
this.     In  that  case  this  court  used  the  following  Ian- 


311 

guage :  ' '  It  is  said  the  recital  in  the  decree  that  it  ap- 
pearing to  the  court  so  and  so,  is  not  a  recital  that 
the  matters  therein  stated  were  found  by  the  court 
upon  the  evidence  in  the  case.  This  is  construing  the 
language  of  the  decree  with  unwarrantable  strictness, 
and  presuming  against  instead  of  in  favor  of  the  cor- 
rect action  of  a  court.  Courts  act  in  view  of  testi- 
mony, and  we  cannot  and  ought  not  to  presume  that 
anything  appeared  to  the  court  and  the  trial  of  the 
cause,  except  what  appeared  from  the  testimony." 
So,  in  the  decree  at  bar  appears  the  recital  that  the 
court  "finds"  so  and  so.  The  court  could  not  "find" 
the  facts  therein  stated,  without  it  did  so  either  from 
admissions  in  the  pleadings,  or  from  the  stipulations 
of  the  parties  or  from  the  evidence.  In  the  absence 
of  anything  to  the  contrary  in  the  record,  this  court 
should  presume,  if  necessary  in  order  to  sustain  the 
"findings,"  that  the  court  did  hear  evidence.  But, 
even,  if  the  rule  were  otherwise,  yet  we  think  that  the 
admissions  in  the  pleadings  in  the  cause  sufficiently 
support  the  decree.  The  principal  point  made  by  ap- 
pellant seems  to  be  that  it  does  not  appear  that  the 
contract  of  September  10,  1881,  upon  which  the  decree 
is  predicated,  was  introduced  in  evidence.  Under  the 
circumstances  of  the  particular  case,  it  was  not  in- 
cumbent upon  Ferry  to  offer  the  written  agreement 
of  that  date  in  evidence.  In  no  case,  either  at  law  or 
in  chancery,  is  a  party  required  to  prove  facts,  alleged 
in  his  pleadings,  which  are  admitted  by  the  pleadings 
of  the  opposite  party.  Pankey  v.  Raum,  51  111.  88. 
Here  the  existence,  execution,  and  contents  of  the 
agreement  of  September  10,  1881,  fully  apears  in  the 
pleadings  of  both  parties.  Said  written  agreement  is 
set  out  as  an  exhibit  to  Ferry's  cross-bill,  and  is  also 
set  out  and  made  an  exhibit  to  the  cross-bill  of  appel- 
lant; and  by  his  answer  filed  on  February  17,  1887, 
to  the  amended  cross-bill  of  Ferry,  appellant  expressly 
admits  that  Ferry  and  he  "entered  into"  said  agree- 
ment; and  in  said  answer  he,  for  greater  certainty, 
makes  reference  to  the  copy  of  said  agreement  which 
is  attached  to  his  (appellant's)  original  cross-bill.    It 


312 

was  unimportant,  under  the  circumstances,  that  the 
execution  of  said  agreement  was  not  proven  at  the 
trial,  and  that  the  contract  was  not  formally  intro- 
duced in  evidence.  The  claims  set  up  by  appellant  in 
his  pleadings  were  in  regard  to  the  legal  construction 
of  said  agreement,  and  that  said  agreement  was  ' '  con- 
trary to  public  policy,  and  that  Ferry  should  not  be 
allowed  to  take  advantage  of  its  terms."  The  only 
facts,  other  than  the  execution,  existence,  and  con- 
tents of  the  contract,  which  were  involved  in  the  find- 
ings made  by  the  court  or  in  the  decree  based  thereon 
were  that  Ferry  purchased  600  shares  of  stock  in  the 
tyre  and  spring  works  for  $15,000;  that  appellant 
transferred  to  Ferry  500  shares  of  the  605  shares  of 
his  (appellant's)  stock  mentioned  in  said  agreement; 
and  that  the  $15,000,  with  interest  at  8  per  cent.,  had 
not  been  repaid  to  Ferry,  as  provided  for  in  the  agree- 
ment. The  answer  of  appellant  to  the  cross-bill  of 
Ferry  admitted  the  purchase  by  Ferry  of  the  600 
shares  of  stock,  and  that  appellant  had  delivered  to 
Ferry  a  certificate  for  500  other  shares  of  his  stock; 
and  the  cross-bill  of  appellant  admitted  the  purchase 
by  Ferry  of  the  600  shares  of  stock  for  $15,000;  and 
the  supplemental  bill  of  appellant  asked  that  Ferry 
"return  and  assign  to  your  orator  [appellant]  the 
said  500  shares  of  stock  in  his  possession,  and  claimed 
by  him  under  said  agreement."  By  the  terms  of  the 
agreement.  Ferry  was  to  have  the  right  to  vote  the 
605  shares  mentioned  therein,  and  only  500  shares  of 
which  were  in  fact  transferred  to  him,  imtil  the 
$15,000,  with  interest  at  8  per  cent.,  should  be  re- 
paid. The  repayment  of  the  $15,000  would  not  be 
presumed,  and  such  repajonent  would  be  an  affirma- 
tive fact  to  be  established  by  api^ellant.  But,  waiv- 
ing this,  it  already  appears  from  the  admissions  in  ap- 
pellant's answer  to  Ferry's  cross-bill,  and  from  the 
admissions  in  appellant's  cross-bill,  that  said  $15,000 
has  not  been  repaid,  either  by  dividends  upon  stock  or 
by  sales  of  the  600  shares  of  stock  or  otherwise,  and 
that  Ferry  is  still  the  owner  of  said  600  shares.  It 
may  be,  as  is  suggested  by  appellant  in  his  reply  brief, 


313 

that  he  in  his  pleadings  denied  the  right  of  Ferry  to 
vote  the  stock  in  question;  contested  his  right  to  have 
any  further  stock  issued;  denied  and  challenged  the 
validity  of  the  contract  on  the  ground  of  public  policy ; 
averred  that  he  was  the  absolute  owner  of  the  stock, 
and  that  he  alone  had  the  right  to  vote  the  same;  de- 
nied that  Ferry  had  any  right  to  the  repajTuent  of  the 
$15,000;  and  asserted  that  the  same  was  a  part  pay- 
ment on  stock,  and  was  to  be  used  in  and  about  the 
business  of  the  tyre  and  spring  works,  and  was  not 
to  be  repaid  to  Ferry.  But  all  these  claims  of  appel- 
lant are  matters  which  involve  only  the  legal  validity 
of,  and  the  construction  to  be  placed  upon,  the  writ- 
ten contract,  and  indicate  clearly  that  the  contentions 
of  appellant  in  the  trial  court  were  in  respect  to  mat- 
ters of  law,  and  admitted  the  facts  upon  which  the  de- 
cree of  the  Supreme  Court  was  based.  We  find  no 
substantial  error  in  the  record.  The  judgment  of  the 
Appellate  Court  is  affirmed. 


LOUGHBRIDGE   v.   NORTHWESTERN    INS.   CO. 

180  111.  267. 

(1899.) 

Wilkin,  J.  Appellee  filed  its  bill  in  the  Circuit 
Court  of  Cook  county  to  foreclose  a  real  estate  mort- 
gage alleged  to  have  been  execiited  by  C.  E.  and  Gay 
Dorn  to  secure  an  indebtedness  due  it  of  $20,000,  evi- 
denced by  their  certain  l)ond  ;tlie  bond  and  mortgage 
being  made  exhibits  to  the  bill.  Though  not  shown  by 
the  abstract  (which  is  very  imperfect),  it  is  admitted 
the  bill  alleged  that,  subsequently  to  the  recording 
of  the  mortgage,  the  mortgagors  conveyed  the  prem- 
ises to  the  appellant,  and  that  they  claimed  an  interest 
in  the  premises.  A  decree  was  entered  in  favor  of 
complainant  for  the  amount  claimed  in  the  bill,  and 
this  appellant  appealed  first  to  the  Appellate  Court, 
where  the  decree  below  was  affirmed,  and  now  prose- 
cutes this  appeal. 

The  bill  alleges  that  $2,000  of  the  secured  indebted- 


314 

ness  was  twice  extended;  that  for  a  default  in  the 
jDayment  of  a  part  of  that  indebtedness  the  complain- 
ant, on  April  14,  1897,  declared  the  whole  amount  of 
said  loan  due  and  unpaid,  and  that  there  was  at  that 
time  due  $19,700,  with  interest  from  November  1,  1896, 
at  6  per  cent,  per  annum;  that  by  reason  of  the  failure 
of  the  mortgagors  and  persons  interested  to  pay  taxes 
on  the  mortgaged  premises,  complainant,  on  April  26, 
1897,  advanced  $253.92;  that  on  May  7,  1897,  it  paid 
$250  for  such  insurance  premiums,  which  sums,  with  6 
per  cent,  interest,  should  be  added  to  the  principal 
amount  due,  that  it  became  necessary  to  procure  a 
continuation  of  abstracts  of  title,  and  to  incur  further 
expenses  in  continuing  abstracts,  the  amounts  for 
which  were  also  claimed.  To  the  bill  appellant  filed 
his  answer,  in  which  he  admits  that  he  purchased 
the  premises,  as  alleged,  "and  assumed  and  agreed  to 
pay,  as  a  part  consideration  therefor,  all  liens  and 
incumbrances  thereon,  *  *  *  and  is  now  the  legal 
owner  of  said  premises,  and  admits  that  his  interest 
in  said  premises  is  subject  to  the  lien  of  complainant's 
said  mortgage;  *  *  *  that  both  G.  Dorn  and  C. 
E.  Dorn  are,  with  this  affiant,  personally  liable  to  pay 
to  complainant  its  said  claim,  amounting  to  $19,700, 
and  interest  and  costs .  *  *  *  that  this  defendant 
stands  ready  and  willing  to  pay  the  entire  amount  of 
said  mortgage  and  interest  to  date."  Other  allega- 
tions of  the  bill  are  neither  admitted  nor  denied,  but 
full  proof  is  required.  It  was  provided  in  the  mort- 
gage that  the  mortgagors  should  keep  the  premises  in- 
sured for  $20,000,  and  pay  the  taxes  annually,  and  de- 
liver to  complainant,  on  or  before  May  1st,  yearly, 
duplicate  receipts  for  such  payments,  and  that,  in  case 
of  failure  to  make  such  insurance  or  to  pay  such  taxes, 
the  mortgagee  might  insure  the  premises  and  pay  the 
taxes,  the  amounts  so  paid,  with  interest  and  expenses, 
to  be  added  to  the  principal;  that,  in  default  of  any 
of  the  covenants  in  the  mortgage,  the  mortgagee  might 
declare  the  whole  amount  due,  and  foreclose  for  the 
same.  It  is  also  agreed  in  the  mortgage  that,  in  case 
of  foreclosure,  the  Dorns  should  pay  for  continuing 


315 

abstracts  of  title  for  the  purpose  of  foreclosing,  and 
reasonable  solicitor's  fees.  The  only  grounds  of  re- 
versal here  urged  are :  First,  that  there  is  a  variance 
between  the  allegations  of  the  bill,  proof,  and  the  de- 
cree ;  second,  that  the  court  erred  in  entering  the  decree 
for  the  tax  payment  of  $253.92  and  interest  thereon, 
and  also  for  insurance  paid,  $250,  and  interest  thereon, 
and  also  for  the  $48  and  $7  for  continuation  of  abstract. 

On  the  first  point  a  long  list  of  authorities  is  cited  as 
sustaining  the  proposition  that,  in  a  chancery  proceed- 
ing, the  bill,  testimony,  and  decree  must  correspond, 
and  that  the  decree  cannot  go  beyond  these ;  that  where 
the  answer  discloses  other  grounds  of  relief,  the  com- 
plainant, to  avail  of  such  relief,  must  amend  his  bill. 
Generally  speaking,  no  one  will  deny  this  proposition ; 
but  the  argument  of  counsel  fails  to  show  wherein 
there  has  been  a  substantial  violation  of  the  rule.  It 
is  said  there  is  no  proof  whatever  of  the  alleged  ex- 
tension upon  the  $2,000  indebtedness.  As  shown,  the 
bill,  after  that  allegation,  states  that  the  whole  amount 
due  upon  the  mortgage  was  $19,700,  and  that  allega- 
tion is  expressly  admitted  by  the  answer.  Where  a 
fact  is  alleged  in  a  bill  and  admitted  in  the  answer, 
the  admission  is  conclusive,  and  evidence  to  establish 
it  is  wholly  unnecessary.  Neither  can  evidence  be 
heard  to  dispute  it.  Insurance  Co.  v.  Myer,  93  111. 
271,  and  authorities  cited.  It  is  wholly  immaterial 
whether  the  answer  making  the  admission  be  sworn 
to  or  not.  Daub  v.  Englebach,  109  111.  267.  In  view 
of  this  allegation  and  admission  by  the  answer,  whether 
there  was  an  extension  of  the  $2,000  is  wholly  imma- 
terial. 

The  first  contention  on  the  second  point  is  that  the 
appellant  had  until  May  1,  1897,  to  pay  the  tax  allowed 
by  the  decree,  and  that,  inasmuch  as  complainant  paid 
it  before  that  time  (April  28th),  it  could  not  recover. 
This  position  is  based  upon  an  assumption  in  direct 
.conflict  with  §  177  of  chap.  120  of  the  Revised 
Statutes,  which  provides  that  ''all  real  estate  upon 
which  taxes  remain  due  and  unpaid  on  the  lOtli  day 
of  March  annually,     *     *     *     shall  be  deemed  delin- 


316 

quent."  As  to  money  paid  for  insurance  and  for  ex- 
tension of  the  abstract  of  title,  we  deem  it  only  neces- 
sary to  say  that  the  payments  were  provided  for  by 
the  mortgage  and  proven  by  the  evidence 

Other  grounds  of  reversal  seem  to  have  been  urged 
in  the  Appellate  Court,  but  are  not  insisted  upon  here, 
and,  if  they  were,  could  not  be  sustained.  There  is 
no  substantial  error  in  this  record.  The  cause  was 
properly  disposed  of  by  the  Appellate  Court,  and  its 
judgment  will  be  affirmed. 

Judgment  affirmed. 


MAKER  V.  BULL, 

39  111.   531. 

(1864.) 

Mr.  Justice  Beckwith  delivered  the  opinion  of  the 
court. 

The  appellee's  testator  filed  a  bill  in  equity  against 
the  appellant  and  Edward  Kelly  to  dissolve  a  co-part- 
nership between  them,  and  wind  up  its  affairs.  A  joint 
and  several  answer  under  oath  was  filed  by  the  de- 
fendants, to  which  there  was  a  replication.  The  de- 
fendants filed  a  cross-bill,  alleging  a  violation  of  the 
articles  of  co-partnership  by  the  complainant,  from 
which  they  had  sustained  damages,  and  praying  for 
their  allowance.  An  answer  was  filed  to  the  cross- 
bill, to  which  there  was  also  a  replication.  Subse- 
quently the  appellant  made  an  application  to  file  a 
further  answer,  which  was  granted,  and,  as  the  record 
states,  subject  to  objection  and  to  such  disposition  as 
the  court  might  make  of  it  at  the  final  hearing.  The 
final  decree  directs  the  further  answer  of  the  appel- 
lant to  be  stricken  from  the  files,  and  we  presume  that 
this  was  done  for  the  reason  that  the  court  was  of 
the  opinion  that  he  was  not  entitled  to  rehef  from 
the  admissions  of  his  former  answer.  Where  an  an- 
swer is  not  under  oath,  and  a  further  answer  is  neces- 
sary to  present  a  defendant's  case,  it  is  always  allowed 
upon  application  made  in  apt  time,  so  that  the  com- 


317 

plainant  is  not  surprised  or  delayed  in  the  progress 
of  the  cause,  nor  injustice  is  done  him  thereby. 

The  original  answer,  until  it  is  otherwise  ordered, 
always  remains  a  part  of  the  record,  and,  while  it  so 
remains,  the  defendant  is  bound  by  its  admissions,  and 
a  retraction  of  them  in  a  supplemental  answer  is  of  no 
more  use  than  so  much  waste  paper.  The  court  never 
allows  its  records  to  be  incumbered  with  useless  papers. 
If  an  admission  has  been  made  in  an  answer  improvi- 
dently  and  by  mistake,  the  court  will  relieve  the  party 
making  it  from  its  effect,  by  an  order  directing  so  much 
of  the  answer  as  contains  the  admission  to  be  treated 
as  no  part  of  the  record,  but,  before  such  an  order 
will  be  made,  the  court  must  be  satisfied  by  affidavit 
that  the  admission  was  made  under  a  misapprehension 
or  by  mistake.  Courts  exercise  a  liberal  discretion  in 
relieving  from  the  effect  of  admissions  in  answers  not 
under  oath,  which  are  mere  pleadings  and  are  fre- 
quently signed  by  counsel;  but  where  an  answer  is 
under  oath  great  caution  is  observed.  If  the  relief 
sought  is  from  an  admission  of  law  it  may  be  suffi- 
cient to  show  that  he  was  erroneously  advised  by  his 
solicitor  in  that  regard;  but  where  the  relief  sought 
is  from  an  admission  of  fact  it  should  be  shown  that 
the  answer  was  drawn  with  care  and  attention,  stating 
upon  information  and  belief  such  facts  as  were  not 
within  the  defendant's  own  knowledge.  No  court 
ought  to  relieve  a  party  from  the  consequences  of  a 
reckless  misstatement  under  oath.  It  should  also  be 
shown  that  the  fact  misstated  was  not  one  within  the 
defendant's  own  knowledge,  and  that  he  was  erro- 
neously informed  in  regard  to  it,  and  made  oath  to 
the  answer,  honestly  believing  such  erroneous  in- 
formation. The  affidavit  of  the  appellant  was  entirely 
insufficient  to  relieve  him  from  the  effect  of  admissions 
in  his  original  answer,  and  his  application  to  file  a 
supplemental  answer  for  that  purpose  was  properly 
denied. 

An  order  was  made,  during  the  progress  of  the  cause, 
requiring  the  defendants  to  close  their  proofs  by  a  day 
named,   which   was   afterward   enlarged,    upon    their 


318 

motion.  At  the  hearing  the  appellant  offered  to  sus- 
tain the  allegations  of  his  answer  and  cross-bill  by  the 
testimony  of  witnesses  to  be  examined  in  open  court; 
but  he  was  not  allowed  to  examine  them,  because  the 
rule  for  closing  proofs  had  expired.  Under  the  act 
of  February  12,  1849,  parties  have  the  right  to  sus- 
tain every  material  allegation  of  their  pleadings  by 
an  examination  of  witnesses  in  open  court,  and  no 
order  can  be  made  abridging  the  rights  of  parties 
under  it,  or  requiring  them  to  waive  or  forego  the 
rights  thus  secured  to  them.  The  proper  practice  is 
to  set  the  cause  for  a  hearing,  and  if  afterward  justice 
or  convenience  require  further  delay  the  hearing  may 
be  postponed,  from  time  to  time,  until  the  court,  in 
its  discretion,  directs  the  parties  to  proceed  therein. 
Every  reasonable  indulgence  should  be  granted  to 
parties  to  enable  them  to  procure  their  testimony ;  and, 
after  it  has  been  done,  if  they  are  not  prepared  at  the 
hearing,  they  should  justly  suffer  the  consequences  of 
their  own  neglect.  It  was  suggested,  in  argument,  that 
the  testimony  offered  by  the  appellant  was  only  cumu- 
lative. If  it  so  appeared  by  the  record,  and  the  testi- 
mony had  been  excluded  for  that  reason,  the  case 
would  merit  a  different  consideration.  According  to 
the  record,  the  parties  were  not  heard,  as  they  were 
entitled  to  be;  and,  without  any  examination  of  the 
merits  of  the  case,  the  decree  of  the  court  below  will 
be  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings. 

Decree  reversed. 


DERBY  V.  GAGE, 
38  111.  27. 

Mr.  Justice  Laweence  delivered  the  opinion  of  the 
court . 

This  was  a  bill  in  chancery,  filed  by  the  appellees 
against  the  appellants  for  the  settlement  of  a  part- 
nership account.  The  case  was  heard  on  bill  and  an- 
swer, and  the  court  decreed  the  defendant,  Derby,  to 


319 

pay  the  complainants,  Gage  and  Tucker,  $5,500,  the 
sum  originally  invested  by  them. 

The  bill  alleges  a  partnership,  for  the  purpose  of 
buying  cotton,  to  have  been  formed  between  the  com- 
plainants, the  defendant  Derby,  and  several  other  per- 
sons, to  which  various  sums  were  contributed  by  the 
different  parties.  From  the  answer  it  appears  that 
the  entire  capital  and  business  were  under  the  control 
of  the  defendant  Derby — that  the  venture  for  the  pur- 
chase of  cotton  resulted  in  no  profits,  but  in  saving 
about  the  capital  invested — that  two  of  the  partners 
then  retired  and  others  were  received  into  the  con- 
cern— that  the  complainants  allowed  their  $5,500 
[*29]  to  remain,  and  that  the  capital  and  business  re- 
mained as  before,  under  the  control  of  Derby. 
He  took  a  boat  load  of  goods  to  Vicksburg,  with  a 
view  of  selling  them  and  buying  cotton.  He  says  in 
his  answer  that  he  sold  the  greater  part  of  the  goods, 
but  was  not  permitted  to  buy  cotton,  and  returned 
with  the  unsold  goods,  which  are  now  stored  in  Chi- 
cago. He  admits  that  he  has  paid  two  of  the  partners 
the  amount  invested  by  them,  thinking  there  would  be 
no  loss,  but  he  thinks  nothing  will  be  made,  and  that 
if  he  charges  his  expenses,  which  he  claims  the  right 
to  do,  there  will  be  a  loss  of  about  $400.  He  says, 
however,  he  is  willing  to  pay  the  complainants  the 
amount  invested  by  them,  if  they  will  allow  him 
$2,480,  which  he  claims  to  be  due  from  them  to  him 
on  a  transaction  not  having  the  most  remote  connec- 
tion with  this  partnership. 

We  are  inclined  to  the  opinion,  judging  from  the 
general  spirit  and  character  of  this  answer,  that  no 
great  injustice  has  been  done  by  this  decree.  At  the 
same  time  we  cannot  affirm  it  without  disregarding 
the  settled  rules  of  chancery  practice,  which  the  ap- 
pellant has  a  right  to  and  does  invoke.  The  decree 
proceeds  on  the  ground,  and  indeed  recites,  that  Derby 
admits  the  possession  of  $5,500  belonging  equitably 
to  complainants.  This  is  an  error.  He  says  the  goods 
are  not  all  sold,  though  he  admits  the  greater  part 
of  them  are,  and  says  the  residue  are  still  in  store 


320 

at  Chicago.  There  is  nowhere  in  his  answer  an  admis- 
sion that  he  has  in  his  hands  either  $5,500,  or  any 
other  specific  sum,  belonging  to  complainants.  The 
answer  is  evasive,  and  the  complainants  should  havo 
excepted  to  it  and  compelled  a  specific  statement  o^' 
the  amount  of  goods  sold  and  unsold,  or  have  filed 
a  replication,  and  taken  proof  on  these  points.  But 
the  case  having  been  heard  on  bill  and  answer,  the 
latter  must  be  taken  as  true,  and  all  that  it  contains 
in  support  of  complainants '  case  is  the  admission  that 
the  defendant  has  sold  the  larger  part  of  the  goods. 
This  is  altogether  too  indefinite  to  form  the  basis  of 
a  decree.  The  fact  that  he  has  paid  two  of  the  part- 
ners their  capital  invested  must  be  taken  with 
[*30]  the  explanation  given  in  the  answer,  that  he  did 
so  under  the  belief  that  on  the  sale  of  the  un- 
sold goods  there  would  be  no  loss.  This,  however, 
does  not  bind  him  to  anticipate  the  sale  of  the  goods 
in  settling  with  the  other  partners. 

The  claim  of  set-off,  made  in  the  answer,  is  inad- 
missible. It  could,  in  any  event,  only  be  heard  upon 
a  cross-bill,  and  a  cross-bill  should  not  be  permitted 
to  be  filed  for  that  purpose  unless  it  is  shown  to  the 
court  by  affidavit  that  the  complainants  are  in  such 
pecuniary  circumstances  that  the  alleged  claim  is  likely 
to  be  lost  unless  allowed  to  be  set  off.  As  already 
stated,  the  claim  has  not  the  slightest  connection  with 
the  subject-matter  of  this  suit,  and  is  for  unliquidated 
damages. 

The  complainants  will  have  leave  to  except  to  the 
answer,  or  to  file  a  replication  and  take  proof.  If, 
however,  all  the  facts  stated  in  the  answer  are  true, 
it  would  appear  that  there  are  partners  who  have  not 
been  made  parties  to  the  bill,  in  which  event  the  com- 
plainants must  amend.  It  is  evident  from  the  answer 
that  there  is  some  sum  coming  to  complainants  from 
the  defendant  Derby,  and  when  this  sum  is  ascertained, 
the  court  will  give  a  decree  for  the  amount  and  for 
interest  upon  it  from  the  time  when  complainants  de- 
manded payment. 

Decree  reversed. 


321 

SCHNADT  V.  DAVIS, 

185  111.  476. 

(1900.) 

Mb.  Justice  Boggs  delivered  the  opinion  of  the  court. 

Section  39  of  chapter  22  of  the  Revised  Statutes,  en- 
titled ''Chancery,"  provides  a  cause  may  be  referred 
to  the  master  in  chancery  to  take  and  report  the  evi- 
dence with  or  without  his  conclusions  thereupon.  In 
the  case  at  bar  the  cause  was  referred  to  the  master 
to  take  the  proof  in  the  cause  and  report  the  same, 
together  with  his  "opinion  of  the  law  and  the  evi- 
dence," It  was  the  duty  of  the  master,  under  this 
order  of  reference,  to  cause  the  witnesses  to  be  brought 
before  him  and  examined,  to  have  their  testimony  re- 
duced to  writing  and  to  embody  such  testimony  in  his 
report,  together  with  his  conclusions  as  to  the  facts 
established  by  the  testimony  and  his  opinion  as  to  the 
rights  of  the  parties  under  the  law  applicable  to  that 
state  of  facts.  ''The  document  exhibiting  the  referee's 
or  master's  findings  and  conclusions  is  called  his  re- 
13ort,  the  object  of  which  is  to  show  the  proceedings 
which  have  been  had  under  the  order  of  reference,  the 
evidence  which  has  been  taken,  and  the  findings  and 
conclusions  reached  by  the  master  or  referee,  accord- 
ing to  the  terms  of  the  order  of  reference,  in  such  a 
manner  that  intelligent  action  may  be  had  thereon 
by  the  court."  (17  Ency.  of  PI.  «&  Pr.  1033.)  In  Hayes 
V.  Hammond,  162  HI.  133,  we  said  (p.  135):  "In  the 
absence  of  any  statute  the  master  did  not  report  the 
evidence  to  the  court,  and  it  was  necessary  for  the 
parties  to  apply  to  him  for  certified  copies  of  such 
evidence  as  they  might  require,  relating  to  matters 
excepted  to;  but  by  our  statute  the  whole  of  the  evi- 
dence is  reported  to  the  court,  and  the  parties  may 
select  from  it  such  portions  as  are  relevant  to  the  ex- 
ceptions and  present  them  to  the  court."  In  Ronan 
V.  Bluhm,  173  HI.  277,  we  said  (p.  284):  "The  cause 
having  been  referred  to  the  master  to  take  and  report 
the  proofs  and  his  conclusions  on  points  of  law  and 


322 

fact,  the  proofs  taken  by  the  master  should  have  been 
submitted  with  his  report." 

The  master  to  whom  this  case  was  referred  holds 
his  office  by  virtue  of  appointment  thereto  under  the 
provisions  of  section  1  of  chapter  90  of  the  Revised 
Statutes,  entitled  "Masters  in  Chancery."  Section  9 
of  said  chapter  90  reads  as  follows :  ' '  Masters  in  chan- 
cery shall  receive  for  their  services  such  compensation 
as  shall  be  allowed  by  law,  to  be  taxed  as  other  costs." 
Section  20  of  chapter  53  of  our  statutes,  entitled  "Fees 
and  Salaries"  (Kurd's  Stat.  1897,  p.  830),  fixes  the 
compensation  to  be  allowed  to  be  charged  and  col- 
lected by  masters  for  their  services.  Said  section  20, 
so  far  as  it  relates  to  services  rendered  by  the  master 
in  this  instance,  is  as  follows: 

"Masters  in  Chancery. — Sec.  20. — Fees  of.  *  *  * 
For  taking  depositions  and  certifying,  for  every  one 
hundred  words,  fifteen  cents.  For  taking  and  report- 
ing testimony  under  order  of  court,  the  same  fees  as 
for  taking  depositions.  *  *  *  Yoy  examining  ques- 
tions of  law  and  fact  in  issue  by  the  pleadings,  and 
reporting  conclusions,  whenever  specially  ordered  by 
the  court,  a  sum  not  exceeding  ten  dollars.  *  *  * 
And  no  other  fee  or  allowance  whatever  shall  be  made 
for  services  by  masters  in  chancery.  In  counties  of  the 
third  class,  masters  in  chancery  may  receive  for  exam- 
ining questions  in  issue  referred  to  them,  and  reporting 
conclusions  thereon,  such  compensation  as  the  court 
may  deem  just,  and  for  services  not  enumerated  above 
in  this  section,  and  which  have  been  and  may  be  im- 
posed by  statute  or  special  order,  they  may  receive 
such  fee  as  the  court  may  allow." 

The  fees  which  masters  are  entitled  to  charge  for 
official  sei*vices  in  the  matter  of  taking  and  reporting 
the  evidence  are  enumerated  in  section  20.  The  con- 
cluding portion  of  the  section,  which  relates  to  the 
fees  of  masters  in  the  count}^  of  Cook,  that  county 
being  of  the  third  class,  changes  the  provision  of 
the  preceding  portions  of  the  section  relating  to  the 
fees  to  be  allowed  for  examining  questions  in  issue 
referred  to  them  and  reporting  conclusions,  but  in  no 
respect  affects  the  provisions  fixing  the  fees  for  taking 


323 

and  reporting  testimon^^  The  fees  for  taking  and 
reporting  testimony  are  the  same  in  each  of  the  coun- 
ties of  the  state,  viz.,  fifteen  cents  per  hundred  words. 
Said  section  20  expressly  prohibits  the  allowance  to 
masters  of  any  fee  or  allowance  not  provided  for  in 
the  section.  The  fees  which  an  incumbent  of  the  office 
of  master  in  chancery  may  lawfully  exact  depend  upon 
the  terms  of  the  statute,  and  the  rule  is  that  such  stat- 
utes are  to  be  strictly  construed.  (4  Am.  &  Eng.  Ency. 
of  Law,  314.)  "Neither  court,  jury  nor  referees  can 
award  costs  unless  authorized  by  law,  and  where  the 
rule  is  fixed  by  statute  it  must  be  followed  strictly." 
(4  Am.  &  Eng.  Ency.  of  Law,  315.)  "It  may  be  safely 
asserted  as  a  legal  proposition,  that  fees  or  costs  can- 
not be  allowed  or  recovered  unless  fixed  by  law.  *  *  * 
A  witness  or  officer  of  the  law  has  no  legal  right  to 
recover  on  a  quantum  meruit  for  services  rendered 
under  the  requirements  of  the  law.  For  such  services 
he  is  limited  to  the  fee  or  compensation  fixed  by  the 
statute."    Smith  v.  McLaughlin,  77  111.  596. 

If  a  master  deems  it  desirable  to  have  the  services 
of  a  stenographer  to  enable  him  to  perform  the  duty 
of  taking  or  reporting  the  evidence,  the  services  ren- 
dered by  the  stenographer  are  to  the  master,  and  the 
stenographer  must  look  to  the  master — not  the  parties, 
or  either  of  them — for  his  compensation.  The  compen- 
sation of  the  master  fixed  by  the  statute  for  taking 
and  reporting  testimony  is  fifteen  cents  per  hundred 
words,  and  no  more  can  be  legally  demanded  of  the 
parties,  or  either  of  them,  for  or  on  account  of  such 
services.  Nor  has  the  court  power  to  order  the  pay- 
ment of  a  greater  sum  or  allowance  for  such  service, 
or  to  order  the  parties,  or  either  of  them,  to  pay  any 
sum  to  a  stenographer  for  assisting  the  master  in 
taking  and  reporting  the  proof.  If  the  court  had  been 
clothed  with  power  to  order  the  apx^ellants  to  procure 
a  transcript  of  the  evidence  from  the  stenographer, 
there  would  be  force  in  the  contention  the  amount  to 
be  received  by  the  stenographer  should  have  been  fixed 
in  the  order — that  the  appellants  should  not  have  been 
left  wholly  in  the  power  of  the  stenographer  as  to 


324 

the  amount  to  be  paid.  The  sense  of  justice  is  not 
always  strong  enough  to  moderate  and  restrain  the 
desire  for  gain.  But  the  stenographer  is  not  an  officer 
of  the  court,  had  no  legal  connection  with  the  court, 
the  master  or  the  case.  The  law  has  not  fixed  his 
compensation  or  authorized  the  court  to  do  so,  and 
the  order  in  its  entirety  must  be  reversed. 

Counsel  for  appellee  says :  ' '  The  practice  before  the 
master  uniformly  contemplates  the  reduction  of  the 
testimony  to  writing  by  a  stenographer.  The  stenog- 
raphers do  not  work  for  nothing.  When  a  party  to 
litigation  calls  witnesses  and  examines  them  at  length, 
with  knowledge  that  their  testimony  is  to  be  taken 
by  the  stenographer,  he  must  expect  that  before  a 
master  can  consider  the  evidence  it  shall  be  presented 
to  him  in  writing.  *  *  *  The  master  cannot  make 
up  his  report  until  the  evidence  is  before  him  in  writ- 
ten form."  The  duty  of  a  master  is  to  have  the  wit- 
ness brought  before  him  and  examined  in  his  presence. 
The  testimony  of  the  witnesses  is  presented  to  the 
master  orally,  and  is  thus  before  him  for  considera- 
tion. His  duty  is  to  reduce  it  to  writing,  or  have  it 
so  reduced  to  writing,  and  report  it  to  the  court.  It 
would  seem  from  the  statements  of  counsel  for  appel- 
lee it  has  become  the  practice  of  masters  in  Cook  county 
to  commit  the  duty  of  hearing  the  witnesses  testify  to 
a  stenographer — not  in  the  presence  and  hearing  of 
the  master — and  of  requiring  the  parties  to  produce  a 
transcript  of  the  testimony  so  taken  for  the  considera- 
tion of  the  master,  in  order  he  may  thereby  be  informed 
as  to  what  has  been  testified  to,  and  consider  and 
weigh  the  testimony  as  disclosed  by  the  transcrii3t, 
and  make  his  findings  from  such  transcript  and  use 
such  transcript  for  his  report  of  the  testimony,  and 
that  the  practice  further  is  to  impose  upon  suitors 
the  burden  of  compensating  the  stenographer  for  doing- 
work  which  it  is  the  duty  of  the  master  to  doj  and  for 
which  the  master  also  collects  the  full  allowance  author- 
ized by  the  statute  to  be  paid  for  such  service.  If 
such  practice  has  obtained  it  should  no  longer  be  tol- 
erated.   When  the  order  of  reference  requires  no  more 


325 

than  that  the  master  shall  take  and  report  the  evi- 
dence, the  evil  of  the  practice  is  the  illegal  exaction  of 
the  sum  of  money  demanded  from  suitors  as  for  the 
compensation  of  the  stenographer,  which,  if  not  sub- 
mitted to,  shall,  as  counsel  for  appellee  contends,  be 
enforced  by  the  denial  of  a  hearing  in  the  courts. 

But  the  practice  is  fraught  with  another  and  not  less 
serious  evil  when  indulged  in  a  case  where,  as  here, 
the  order  of  reference  requires  the  master  shall  also 
make  report  of  his  conclusions  of  law  and  fact.  In 
order  to  discharge  the  duty  of  arriving  at  conclusions 
as  to  the  facts,  the  master  should  see  the  witnesses  and 
hear  them  testify.  In  17  Eney.  of  PL  &  Pr.  1028,  it 
is  said :  ' '  One  of  the  most  important  duties  and  powers 
of  the  referee  is  to  hear  the  parties  and  such  evidence 
as  may  be  presented  bearing  upon  the  issues  involved." 

The  order  entered  by  the  court,  on  motion  of  the 
appellee,  that  the  master  should  not  consider  the  testi- 
mony which  had  been  taken  before  him  in  behalf  of  the 
appellants  unless  the  appellants  should  procure  and 
submit  to  the  master  a  stenographer's  transcript  of 
the  said  testimony,  should  not  have  been  entered,  but 
the  motion  should  have  been  denied.  The  action  of 
the  master  in  considering  only  the  testimony  of  the 
appellee  and  forming  his  conclusions  therefrom  should 
not  have  been  approved  by  the  court,  but  the  objections 
and  exceptions  in  that  respect  presented  to  the  report 
should  have  been  sustained.  It  was  the  right  of  the 
master  to  demand  compensation  for  taking  and  report- 
ing the  proof  at  the  statutory  rate  of  fifteen  cents  per 
hundred  words.  For  examining  the  questions  of  law 
and  fact  and  reporting  his  conclusions  thereon  the 
master  was  entitled  to  such  compensation  as  the  court 
should  deem  just — that  is,  such  amount  as  the  court, 
upon  consideration  of  such  services,  should  judicially 
determine  to  be  just  and  reasonable  and  should  order 
to  be  paid.  The  master  cannot  arbitrarily  fix  upon 
an  amount  to  be  paid  him  as  his  compensation  for 
examining  questions  of  fact  and  reporting  his  con- 
clusions, but  before  he  is  entitled  to  demand  the  par- 
ties, or  either  of  them,  shall  compensate  him  in  any 


326 

sum  for  such  services,  it  is  his  duty  to  have  the  court 
determine  the  amount  he  is  justly  entitled  to  receive 
for  such  services.  In  the  determination  of  that  ques- 
tion the  parties  are  entitled  to  be  heard.  The  hear- 
ing should  be  had  after  the  master  has  considered  the 
evidence,  made  his  finding  of  law  and  fact  and  com- 
pleted his  report,  so  that  it  is  ready  to  be  filed  on 
payment  of  the  amount  the  court  finds  should  be  paid 
for  such  services,  for  the  reason  an  inspection  of  the 
report  is  necessary  to  enable  the  court  to  ascertain  and 
determine  as  to  the  just  compensation  to  be  paid  the 
master  and  by  whom  it  shall  be  paid.  The  course  is 
desirable  for  the  further  reason,  before  the  master  has 
acted  he  is,  in  a  sense,  clothed  with  power  to  declare 
judgTuent  on  the  rights  and  interests  of  the  parties, 
and  their  condition  and  relation  to  the  master  is  such 
they  should  not  then  be  required  to  accede  to  or  con- 
test his  demands  for  services  to  be  rendered  in  the 
matter  of  deciding  for  or  against  them.  The  report 
in  this  case  as  to  the  fees  and  charges  of  the  master 
is  as  follows:  ''Master's  fee  this  report,  $50."  This 
mode  of  reporting  fees  and  charges  can  be  easily  made 
a  cover  for  illegal  and  oppressive  exactions.  An  item- 
ized statement  of  services  rendered,  and  the  fees  al- 
lowed therefor  by  the  statute,  should  be  made,  and  if 
services  are  rendered  for  which  the  fees  are  not  fixed 
by  the  statute,  but  are  left  to  be  determined  by  the 
chancellor,  the  report  should  state  such  service  and  the 
action  of  the  court  in  the  matter  of  the  master's  com- 
pensation therefor,  and  also  should  show  whether  such 
costs  had  been  paid,  and  if  paid,  by  whom. 

It  is  urged  it  does  not  appear  from  the  record,  other- 
wise than  from  the  statements  in  the  exceptions  to  the 
report  of  the  master,  that  the  witnesses  named  in  such 
exceptions  gave  testimony  before  the  master,  or  that 
the  master  did  not  consider  all  the  testimony  produced 
by  the  appellants  on  the  hearing  before  the  master. 
The  court,  on  motion  of  the  appellee,  ordered  that  the 
appellants  should,  on  or  before  a  day  named^  submit 
to  the  master  a  stenographer's  transcript  of  the  evi- 
dence taken  on  behalf  of  said  appellants  and  that  in 


327 

default  of  compliance  with  such  order  the  master 
should  make  up  and  return  his  report  upon  the  evi- 
dence appearing  from  transcripts  of  stenographer's 
notes  submitted  to  him.  This  order  clearly  established 
that  the  testimony  of  witnesses  produced  by  appellants 
had  been  heard  and  taken  down  in  shorthand.  The 
master's  report  contains  no  testimony  taken  on  behalf 
of  appellants.  The  certificate  attached  by  the  master 
to  his  report  states,  in  express  terms,  the  report  con- 
tained all  the  evidence  "submitted"  to  him  and  on 
which  he  acted,  and  that  such  evidence  was  that,  only, 
which  had  been  produced  by  and  on  behalf  of  appellee. 
That  the  master  did  not  regard  the  testimony  of  wit- 
nesses taken  under  the  order  of  reference,  but  not 
transcribed  into  longhand,  as  "submitted"  and  that  he 
excluded  such  testimony  from  his  report  and  from 
consideration,  is  too  clear  to  admit  of  doubt  or  require 
discussion. 

It  is  urged  that  the  exceptions  to  the  action  and  re- 
port of  the  master  should  have  been  supported  by  a 
showing  of  the  testimony  on  behalf  of  the  appellants 
which  the  exceptions  allege  was  erroneously  excluded 
from  the  report.  This  testimony  had  been  produced 
before  the  master.  It  was  the  duty  of  the  master  to 
have  embraced  it  within  his  report  as  a  proper  part 
of  the  record  of  the  cause.  It  was  omitted  from  the 
report  and  excluded  from  consideration  under  author- 
ity of  an  order  which  the  appellee  procured  to  be  im- 
properly entered.  It  was  enough  for  the  appellants 
to  show  that  the  master  had  thus  omitted  the  testimony 
produced  in  their  behalf.  On  such  showing  the  report 
should  have  been  disapproved  and  the  master  ordered 
to  make  report  of  the  testimony  produced  before  him. 

The  judgment  of  the  Appellate  Court  and  the  de- 
cree of  the  Circuit  Court  are  each  reversed^  and  the 
cause  will  be  remanded  to  the  Circuit  (^ourt,  with 
directions  to  deny  the  motion  entered  by  appellee  to 
require  the  appellants  to  procure  and  submit  to  the 
master  transcripts  of  the  testimony  produced  before 
the  master  by  the  appellants,  and  to  take  such  further 


328 

proceedings  in  the  cause  as  to  justice  and  equity  shall 
appertain. 

Reversed  and  remanded,  with  directions. 


cox  V.  PIERCE, 

120  111.  556. 
(1887.) 

ScHGLFiELD,  J.  A  full  statement  of  this  case  will  be 
found  in  22  111.  App.  43,  and  we  entirely  concur  in  the 
conclusion  there  reached,  and  in  all  that  is  there  said 
on  the  questions  of  fact. 

We  deem  it  necessary  to  notice  here  only  one  ques- 
tion of  law  discussed  in  the  arguments  of  counsel.  The 
bill  is  for  an  account  of  partnership  dealings.  An- 
swer was  filed  putting  in  issue  the  material  allegations 
of  the  bill,  and  to  this  there  was  filed  a  replication. 
The  court  afterwards  referred  the  cause  to  the  master 
in  chancery  to  take  the  evidence  and  report  it  to  the 
court,  and  thereafter  the  court  further  ordered  that 
the  master  in  chancery,  "on  concluding  the  taking  of 
testimony,  state  the  account  between  the  said  parties, 
and  report  the  same,  with  the  evidence  taken  by  him, ' ' 
to  the  court.  The  master  in  chancery  proceeded,  in  com- 
pliance with  this  order,  to  take  the  testimony,  and 
state  the  account  between  the  parties,  and  he  prepared 
a  report  thereof,  which  he  submitted  to  the  respective 
parties.  The  present  appellant  filed  exceptions  to  the 
report,  which  the  master  disallowed.  The  report,  to- 
gether with  the  evidence  taken,  and  appellant's  excep- 
tions to  the  report,  were  then  filed  in  the  Circuit  Court. 
By  agreement  of  parties  entered  of  record,  the  chan- 
cellor heard  the  case  upon  the  report,  exceptions,  etc., 
and  accompanying  evidence  in  vacation,  and  then  sus- 
tained the  exceptions,  and  decreed  that  the  cause  be 
again  referred  to  the  master,  and  that  he  restate  the 
account.  In  obedience  to  this  order  the  master  re- 
stated the  account,  and  made  a  report  thereof  to  the 
respective  parties,  and  the  appellant  filed  exceptions 
to  this  report  also,  but  the  master  disallowed  them. 


329 

This  report,  and  the  exceptions  thereto,  and  the  evi- 
dence taken,  were  afterwards  filed  in  the  Circuit  Court, 
and  appellant  there  renewed  his  exceptions  to  the 
master's  report,  but  they  were  overruled  by  the  court. 
And  thereupon  appellant,  after  identifying  certain 
books  as  the  account  books  of  the  firm,  offered  to  read 
them  in  evidence,  but  the  court  refused  to  allow  them 
to  be  so  read.  Appellant  then  offered  to  prove  by 
oral  evidence  facts  tending  to  show  that  the  accounts, 
as  stated  by  the  master,  was  not  correctly  stated,  but 
the  court  likewise  refused  to  allow  this  proof  to  be 
made ;  and  thereupon  decree  was  rendered,  in  conform- 
ity with  the  master's  report,  in  favor  of  appellee. 

Prior  to  the  act  of  February  12,  1849,  (Scates,  Comp. 
166,)  oral  evidence  was  not  heard  in  chancery  cases, 
but  all  evidence  was  presented  by  depositions.  That 
act,  however,  provided  that,  "on  the  trial  of  any  suit 
in  chancery,  the  evidence  on  the  part  of  either  plaint- 
iff or  defendant  may  be  given  orally."  And  in  Owens 
V.  Ranstead,  22  111.  161,  it  was  held  that  the  court  can- 
not deprive  parties  of  their  rights,  under  the  statute, 
to  introduce  oral  evidence,  by  a  rule  of  court  exclud- 
ing it  unless  ten  days'  previous  notice  of  the  intention 
to  offer  such  evidence  shall  be  given.  And  in  Maher 
V.  Bull,  39  111.  531,  it  was  held  that  the  court  cannot 
by  an  order  to  close  proofs  by  a  particular  time,  pre- 
vent a  party  from  giving  oral  evidence,  under  this 
statute,  on  the  hearing.  Neither  case,  however,  it  will 
be  noticed,  has  any  relevancy  to  a  hearing  before  a 
master  in  chancery,  and  when  they  were  decided  there 
was  no  statutory  provision  authorizing  a  reference  to 
a  master  in  chancery.  Since  these  cases  were  decided, 
our  legislature,  by  an  act  approved  March  15,  1872, 
(2  Gross,  St.  1873,  p.  35,  §  39,)  has  enacted:  "The 
court  may,  upon  default  or  upon  issue  being  joined, 
refer  to  the  cause  to  a  master  in  chancery,  or  special 
commissioners,  to  take  and  report  evidence,  with  or 
without  his  conclusions  thereupon."  See,  also,  note  at 
bottom  of  page  36,  icL  This  section  is  reproduced  liter- 
ally as  section  39  of  chapter  22,  entitled  "Chancery," 
in  the  Eevision  of  1874.    And  the  substance  of  the  act 


330 

of  February  12,  1849,  is  reproduced  in  that  revision 
as  section  38  of  chapter  51,  entitled  "Evidence  and 
Depositions,"  in  these  words:  "On  the  trial  of  every 
suit  in  chancery,  oral  testimony  shall  be  taken  when 
desired  by  either  party."  These  sections  must,  then, 
be  construed  as  parts  of  a  single  system,  and  so  as 
to  give  effect  to  both.  We  cannot  suppose  that  the 
legislature  intended  to  confer  upon  the  Circuit  Courts 
so  useless  a  power  as  that  of  referring  causes  to  mas- 
ters in  chancery  to  take  and  report  the  evidence,  to- 
gether with  their  conclusions  thereon,  when  such  evi- 
dence and  report  might  be  entirely  disregarded  by 
either  party,  and  the  court  be  required  to  again  listen 
to  all  the  evidence  detailed  orally  by  witnesses.  The 
words  "the  evidence  in  the  case"  unquestionably 
mean  all  the  evidence  in  the  case;  and  the  only  pur- 
pose in  allowing  it  to  be  referred  to  the  master  to  take 
it  and  report  it,  with  or  without  his  conclusions  therein, 
to  the  court,  is  to  lighten,  to  that  extent,  the  labors  of 
the  court.  It  must  therefore  have  been  intended  that 
oral  evidence,  instead  of  depositions,  shall  be  taken 
on  the  trial  of  every  suit  in  chancery,  when  desired 
by  either  party;  but  when  it  is  referred  to  the  master 
to  take  and  report  the  evidence  in  the  case,  and  his 
conclusions  thereon,  all  the  evidence,  whether  in  de- 
positions or  documents,  oi'  to  be  detailed  by  the  mouths 
of  living  witnesses,  must  be  introduced  before  him; 
and  when  thus  introduced,  and  afterwards  properly 
reported  by  the  master  to  the  court,  it  is,  in  the  lan- 
guage of  section  38,  c.  51,  supra,  "taken  on  the  trial." 
And,  on  the  assumpsit  that  this  is  the  correct  construc- 
tion of  the  sections,  we  held,  in  Prince  v.  Cutler,  69 
111.  267,  that,  upon  hearing  exceptions  to  the  master's 
report,  it  is  not  competent  to  hear  any  evidence  that 
was  not  before  the  master  when  he  made  his  report. 
See  page  272.  If  the  evidence  offered  was  not  ad- 
missible upon  the  question  of  confirming  the  report,  it 
cannot  be  admissible  to  contradict  it;  for  to  allow  it 
for  that  purpose  would  be  only  to  do  indirectly  what 
is  not  allowed  to  be  done  directly. 

The  ruling  was  right.    The  judgment  of  the  Appel- 
late Court  is  affirmed. 


531 

BLAIR  V.  READING, 

99  111.  600. 

(1881.) 

Me.  Justice  Mulkley  delivered  the  opinion  of  the 
court. 

Quite  a  number  of  objections  are  urged  against  the 
propriety,  regularity  and  legality  of  the  decree  in  this 
case ;  but  it  is  claimed,  as  to  most  of  them,  the  assign- 
ment of  errors  in  the  Appellate  Court  is  not  suffi- 
ciently broad  to  cover  them.  The  tenth  assignment 
of  error  in  that  court  questions  the  justness  and  legal- 
ity of  the  record  and  proceedings  in  the  Circuit  Court 
generally,  and  we  are  of  opinion  it  is  sufficiently  defi- 
nite to  present  for  our  consideration  all  the  objections 
urged  against  the  decree  and  proceedings  in  that  court. 
As  the  decree  will  have  to  be  reversed  for  errors  mani- 
fest on  the  face  of  it,  we  do  not  deem  it  proper  to  enter 
upon  a  discussion  of  the  evidence,  or  to  express  any 
opinion  upon  the  merits  of  the  controversy,  so  that 
upon  a  rehearing  the  efforts  of  the  court  and  parties 
to  arrive  at  a  just  and  proper  conclusion  upon  the  real 
merits  of  the  controversy  may  not  be  embarrassed  by 
anything  we  may  here  say. 

The  circumstances  under  which  this  case  was  tried, 
in  our  judgment,  afford  sufficient  ground  for  remand- 
ing the  cause  for  a  rehearing,  if  there  were  no  other 
reasons  for  doing  so. 

After  the  issues  were  made  up,  and  the  cause  was 
standing  for  a  hearing  upon  the  proofs  already  taken 
and  reported  by  a  special  master,  the  parties  mutually 
agreed  that  the  cause  might  be  heard  by  the  judge  at 
chambers  in  vacation.  Now,  it  is  very  clear  that  the 
judge  at  such  a  hearing  could  exercise  no  judicial  func- 
tion. He  could  not,  therefore,  make  any  order  in  the 
case  which  would  be  binding  upon  the  parties,  as  a 
judicial  act  or  otherwise,  against  their  assent,  which 
was  not  strictly  in  pursuance  of  their  agreement,  if  at 
all.  It  therefore  follows,  the  judge  upon  the  hearing 
at  chambers  had  no  power  to  entertain  an  application 


332 

to  dismiss  complainant's  bill  as  to  Reading,  and  a  for- 
tiori had  no  power  or  authority  to  require  Blair  to 
answer  Reading's  cross-bill,  or  to  pass  upon  the  suffi- 
ciency of  the  answer  which  he  had  filed  under  protest ; 
and  least  of  all  had  he  any  authority  to  pronounce  a 
decree  pro  confesso  against  Blair,  on  his  failure  to 
further  answer  said  cross-bill,  in  obedience  to  a  rule 
to  answer  instanter,  which  he  had  no  power  to  enter. 

It  is  a  fundamental  principle  that  courts  can  exer- 
cise judicial  functions  only  at  such  times  and  places 
as  are  fixed  by  law,  and  that  the  judges  of  courts  can 
enter  no  orders  in  vacation,  except  such  as  are  ex- 
pressly authorized  by  statute.  The  legislature  has  pro- 
vided that  the  judges  of  circuit  courts  and  the  Superior 
Court  of  Cook  county  may,  upon  due  notice,  entertain 
motions  in  vacation  to  dissolve  injunctions,  permit 
amendments  of  pleadings,  etc.,  and  they  may  also 
enter  judgments  in  causes  which  have  been  taken 
under  advisement;  but  these  provisions  have  no  appli- 
cation to  the  case  in  hand. 

The  agreement  to  a  hearing  in  vacation  was  volun- 
tary, and  could  not,  in  any  view,  become  binding  upon 
the  parties,  except  so  far  as  it  was  executed  with 
their  assent,  and  in  strict  conformity  with  its  terms. 
Whether,  if  the  judge  had  heard  the  cause  upon  the 
evidence  and  pleadings  as  they  stood  at  the  time  the 
agreement  was  entered  into,  and  the  parties  had  ap- 
peared and  participated  in  the  hearing  without  ob- 
jection, and  a  decree  had  subsequently  been  entered  up 
in  term  time,  in  pursuance  of  such  hearing,  the  parties 
under  such  circumstances  would  be  estopped  from 
questioning  the  regularity  of  the  proceedings,  is  a 
question  which  is  not  presented  by  this  record,  and 
about  which  we  do  not  feel  called  upon  to  express  any 
opinion.  Whatever  might  be  the  rule  in  such  a  case  as 
that,  cannot  affect  the  result  in  this  case.  The  parties, 
in  entering  into  the  agreement  in  question,  must  be 
presumed  to  have  known  that  the  judge,  in  vacation, 
would  be  powerless  to  enter  any  orders  which  would 
in  any  manner  change  the  status  of  the  case,  and  that 
no  such  power  could  be  conferred  upon  him  by  the 
mere  agreement  of  the  parties. 


333 

It  is,  therefore,  but  reasonable  to  assume  that  the 
parties,  by  entering  into  this  agreement,  intended  to 
bind  themselves  to  nothing  further  than  that  the  ease 
should  be  heard  by  the  judge  at  the  time  and  place 
specified,  upon  the  issues  as  then  made  up,  and  such 
evidence  as  had  already  been  taken  and  might  be  pro- 
duced at  the  hearing,  and  that  the  conclusion  reached 
by  the  judge  upon  such  hearing  might  subsequently 
be  entered  by  the  court  as  the  decree  in  the  cause, 
subject  to  such  exceptions  as  the  parties  might  see 
proper  to  make  to  the  same.  But  the  judge  who  pre- 
sided at  the  hearing  seems  to  have  taken  a  different 
view  of  the  matter.  He  clearly  acted  upon  the  legal 
hypothesis  that  he  was  clothed  with  judicial  powers 
to  the  same  extent  as  if  court  had  been  in  session. 
This,  as  we  have  already  seen,  was  a  misapprehen- 
sion of  the  law.  Indeed,  it  is  conceded  by  counsel  on 
both  sides,  that  all  orders  made  by  the  judge  at  the 
hearing  were  without  any  authority  of  law,  and  there- 
fore void,  and  upon  this  very  ground  the  decree  is 
sought  to  be  justified  by  defendants  in  error.  It  is 
argued  that  inasmuch  as  all  the  proceedings  before 
the  judge  in  vacation  were  unauthorized  and  void,  this 
court  must  disregard  them  altogether,  just  as  though 
they  had  never  taken  j^lace,  and  look  only  to  the  de- 
cree as  finally  entered  by  the  court.  While  this  posi- 
tion at  first  view  may  seem  plausible,  yet  there  are 
several  fatal  objections  to  it.  In  the  first  place,  it 
appears,  from  the  recitals  of  the  decree  itself,  that  it 
is  based  upon  the  hearing  in  vacation,  and  not  upon 
any  trial  or  hearing  in  court,  and  if  that  hearing  is 
to  be  disregarded  altogether,  then  the  decree  was 
simply  entered  up  without  any  hearing  at  all,  for  it  is 
manifest  there  never  was  any  other  hearing  except 
the  one  in  vacation,  and  to  render  a  decree  without 
any  hearing  or  submission  at  all  would  clearly  be 
error. 

Again,  the  decree  further  shows  that  the  hearing 
was  had  upon,  among  other  things,  the  cross-bill  of 
Reading,  to  which  no  answer  was  filed  by  Blair  except 
the  one  in  vacation :  and  as  no  rule  to  answer  was  ever 


334 

entered  against  him,  except  that  which  was  entered 
in  vacation,  it  follows,  upon  the  theory  assumed,  that 
the  decree  upon  the  Reading  cross-bill  was  rendered, 
in  contemplation  of  law,  without  any  answer,  or  even 
a  rule  to  answer,  for  the  record  shows  no  other  rule 
except  that  in  vacation  was  ever  entered  against  him 
requiring  an  answer,  and  to  enter  a  decree  on  a  cross- 
bill without  either  an  answer  or  rule  to  answer,  would 
clearly  be  error.  Assuming,  then,  that  the  proceedings 
before  the  judge  were  irregular  and  iuvalid,  it  follows 
that  any  decree  founded  upon  them  would  of  neces- 
sity be  erroneous.  While  we  regard  the  orders  of  the 
judge,  with  respect  to  the  cross-bill  and  answer  thereto, 
as  without  authority,  and  therefore  void,  yet  it  does 
not  follow  that  the  cross-bill  and  answer,  when  filed 
in  court  in  the  cause,  were  also  void.  When  properly 
entitled  and  filed  they  became  pleadings  in  the  cause, 
notwithstanding  error  may  have  intervened  in  the  man- 
ner in  which  they  became  a  part  of  the  files.  Let  it, 
therefore,  be  admitted  that  while  the  orders  of  the 
judge  in  vacation  are  to  be  regarded  as  mere  nullities, 
yet  as  the  cross-bill  of  Reading,  and  answer  thereto, 
were  filed  before  the  decree  was  entered,  they  became 
upon  such  filing  proper  pleadings  in  the  cause,  and 
the  court,  in  rendering  its  decree,  had  the  right  to  act 
upon  them,  although  the  answer  was  filed  under  pro- 
test and  in  obedience  to  a  rule  which  the  judge  had 
no  power  to  make.  Still,  we  are  of  opinion  the  decree 
upon  the  Reading  cross-bill  is  erroneous;  for  in  that 
view  of  the  case  it  would  have  been  the  duty  of  the 
court,  on  discovering  the  cross-bill  and  answer  on  file, 
to  have  set  the  case  down  for  a  hearing,  at  least  as 
to  the  cross-bill,  which  was  not  done.  Moreover,  as- 
suming this  view  of  the  law  to  be  correct,  it  would 
follow,  if  Blair  had  the  right,  under  the  law,  to  dis- 
miss his  bill  as  to  Reading  at  the  time  of  his  applica- 
tion to  do  so,  his  written  motion  filed  for  that  purpose 
having  been  made  the  day  before  the  filing  of  the  cross- 
bill, had  the  effect  of  defeating  altogether  the  right  to 
file  the  cross-bill.  The  motion  to  dismiss  being  first 
in  time,  had  precedence  of  the  motion  to  file  the  cross- 


335 

bill,  and  should  have  been  disposed  of  first,  according 
to  the  rights  of  the  parties  as  they  appeared  when  the 
motion  was  made. 

It  is  laid  down  in  Daniell's  Chancery  Practice,  with- 
out any  modification,  that  a  complainant  has  the  right, 
at  any  time  before  hearing,  to  dismiss  his  bill  at  his 
own  costs,  either  as  to  a  part  or  all  of  the  defendants, 
and  this,  in  the  absence  of  any  statutory  provisions 
on  the  subject,  is  unquestionably  the  correct  rule.  2 
Daniell's  Ch.  P.  927;  Dixon  v.  Parks,  1  Ves.  Jr.  402; 
Curtice  v.  Lloyd,  4  Mylne  &  Craig,  194. 

Our  statute,  however,  has  provided,  that  "no  com- 
plainant shall  be  allowed  to  dismiss  his  bill  after  a 
cross-bill  has  been  filed,  without  the  consent  of  the 
defendant,"  and  it  is  claimed  by  defendants  in  error, 
that  inasmuch  as  Ray  had  filed  a  cross-bill  before 
Blair's  application  to  dismiss  as  to  Reading,  the  lat- 
ter, who  had  filed  none  at  that  time,  can  avail  him- 
self of  the  fact  that  Ray  had,  in  order  to  defeat 
Blair's  right  to  dismiss  as  to  Reading. 

The  manifest  object  of  the  legislature  in  adopting 
this  provision  was  to  enable  any  defendant  in  chan- 
cery who  might  have  some  equitable  right  or  cause  of 
action  against  the  complainant,  growing  out  of  and 
connected  with  the  matters  set  up  in  the  complainant 's 
bill,  to  have  all  matters  of  difference  connected  with 
the  subject  matter  of  litigation  fully  and  finally  dis- 
posed of  at  the  same  time,  or  at  least  in  the  same 
suit.  It  certainly  could  not  have  been  intended, 
where  the  parties  are  numerous  and  the  plaintiff  dis- 
covers he  has  improperly  joined  some  of  them  in  the 
bill,  to  deprive  him  of  the  right  of  dismissing  as  to  them, 
merely  because  one  or  more  of  the  others  have  filed 
a  cross-bill,  in  which  the  unnecessary  parties  have  not 
joined  or  deemed  the  matter  in  controversy  of  suffici- 
ent importance  to  file  one  on  their  own  account.  Is  the 
complainant  bound  to  keep  these  parties  in  court, 
thereby  increasing  the  costs  and  expenses  of  the  liti- 
gation, merely  because  some  of  their  co-defendants 
happen  to  want  to  litigate  matters  in  which  these  un- 
necessary parties  have  no  concern,  and  the  others  pos- 


336 

sibly  withhold  their  assent  to  a  dismissal  merely  for 
the  sake  of  harassing  and  punishing  the  complainant? 
We  think  not.  We  are  of  opinion  that  no  one  can 
avail  himself  of  the  statute  unless  he  has,  either  by 
himself  or  in  connection  with  other  defendants,  filed 
a  cross-bill  before  the  application  to  dismiss  is  made. 
It  follows,  therefore,  that  the  pendency  of  Ray's 
cross-bill  to  which  Reading  was  not  a  party  complain- 
ant, presented  no  reason  why  Blair's  bill  should  not 
have  been  dismissed.  This  being  so,  whether  the  pro- 
ceedings in  vacation  be  regarded  void  or  valid,  the 
decree,  so  far  as  it  is  based  upon  Reading's  cross-bill, 
is  erroneous. 

The  decree  upon  the  cross-bill  of  Ray  is  also  er- 
roneous in  several  respects.  The  decree,  after  declar- 
ing the  injunctions  in  the  two  replevin  suits,  and  in 
the  action  of  assumpsit,  in  which  the  judgment  for 
$2,569.20  had  been  confessed,  dissolved,  and  after  re- 
citing the  fact  that  said  judgment  had  been  opened 
and  leave  granted  to  plea  to  the  merits,  proceeds  in 
these  words :  ' '  And  in  said  case  of  Lyman  B.  Ray 
V.  Novel  Blair,  in  assumpsit,  said  motion  to  open  and 
for  leave  to  plead  are  ordered  to  be  vacated  and  set 
aside,  and  said  judgment  for  said  sum  of  $2,574,  en- 
tered May  25,  1875,  confirmed;  and  it  is  further  or- 
dered that  said  case  of  Novel  Blair  against  Ray, 
Reading  and  Schroder  in  replevin,  be  dismissed  out 
of  court,  with  the  customary  order  for  the  return  of 
the  property  replevied." 

While  a  court  of  chancery,  under  a  proper  state  of 
facts,  may  restrain  parties  from  prosecuting  a  suit 
at  law,  and  may  declare,  for  sufficient  reasons,  such 
suit  and  all  proceedings  under  it  null  and  void,  yet 
we  are  aware  of  no  principle  that  authorizes  it  to 
otherwise  assume  control  over  such  proceedings  by 
directing  this  or  that  step  shall  be  taken  in  the  case, 
as  was  done  in  the  present  case.  Whether  the  prop- 
erty replevied  should  be  returned  or  not,  was  a  ques- 
tion for  the  exclusive  determination  of  the  court  of 
law  in  which  the  case  was  pending.  Courts  of  equity 
can  control  proceedings  at  law  only  by  acting  upon  the 


337 

parties,  or  by  annulling  their  proceedings  when  con- 
summated. They  have  no  right  to  sit  as  a  court  of 
error  for  the  purpose  of  reviewing  their  proceedings, 
or  of  directing  what  steps  shall  be  taken  in  them. 
Courts  of  law  of  general  jurisdiction  have  the  same 
control  over  their  proceedings  as  courts  of  equity 
have  over  theirs,  subject  to  the  limitation  already 
stated,  and  any  decree  which  assumes  to  exercise  such 
power  or  jurisdiction  over  them  is  erroneous. 

Again  the  decree  directs,  "that  in  case  of  default 
by  said  Blair  in  making  such  return  of  the  property, 
the  coroner  of  Grundy  county,  upon  being  presented 
with  a  certified  copy  of  this  decree,  seize  the  said 
property,  if  found  within  his  county,  and  return  the 
the  same  to  said  Ray,  and  make  due  return  of  his 
acts  in  that  regard  to  this  court,"  etc.  This  x)i"ovision 
of  the  decree  is  clearly  erroneous.  The  coroner  of 
Grundy  county  not  being  a  party  to  the  suit,  as  an 
individual  was  not  subject  to  the  orders  or  direction 
of  the  court.  As  an  officer  he  was  not  authorized  to 
exercise  any  power  or  authority  over  the  property  re- 
plevied, except  in  obedience  to  legal  process  placed  in 
his  hands  for  that  purpose,  and  a  certified  copy  of  the 
decree  is  in  no  sense  legal  process,  within  the  mean- 
ing of  the  constitution.  By  the  provisions  of  that  in- 
strument all  process  must  run  in  the  name  of  the 
People  of  the  State  of  Illinois,  and  a  mere  certified 
copy  of  the  decree  would  not  meet  this  requirement 
of  the  constitution.  We  fully  recognize  the  power  of 
a  court  of  equity,  where  it  has  obtained  jurisdiction 
over  property  in  litigation,  to  appoint  a  receiver  or 
other  custodian  of  such  property,  and  clothe  him  with 
such  power  and  authority  as  may  be  necessary  for 
the  management  and  preservation  of  the  same;  but 
that  is  not  the  case  here,  and  the  principle  has  no 
application  to  the  facts  of  this  case. 

There  are  other  errors  of  a  similar  character  ap- 
pearing upon  the  face  of  the  decree,  but  we  will  not 
consume  further  time  by  considering  them,  as  what 
we  have  already  said  is  deemed  sufficient  to  present 
our  views  upon  this  subject. 


338 

We  are  also  of  opinion  the  assessment  of  damages, 
on  account  of  suing  out  the  injunction,  is  not  war- 
ranted by  the  circumstances  in  this  case.  The  only 
element  of  damages  which  entered  into  the  allowance 
made  by  the  court,  was  that  of  solicitor's  fees.  The 
whole  amount  in  controversy  was,  as  shown  by  the  de- 
cree, a  fraction  over  $2,400,  and  the  court  assessed 
the  damages  at  $600.  The  propriety  of  suing  out  the 
injunction  was  never  called  up  or  considered  by  the 
court  until  the  case  was  finally  considered  on  its 
merits.  Hence  the  extra  expense  of  a  separate 
hearing  of  a  motion  to  dissolve  was  not  incurred, 
and  upon  an  examination  of  the  record  and  the 
general  character  of  the  evidence,  it  is  manifest, 
that  so  far  as  any  portion  of  the  proofs  was  neces- 
sary or  appropriate  in  obtaining  a  dissolution  of  the 
injunction,  with  the  exception  of  that  which  was  of- 
fered in  proof  of  the  damages,  it  was  equally  neces- 
sary and  appropriate  to  establish  the  case  of  defend- 
ants in  error,  irrespective  of  the  injunction.  In  short, 
we  are  of  opinion  the  expenses  incurred  on  account 
of  solicitor's  fees  in  the  preparation  of  the  case  for 
a  hearing,  and  in  conducting  the  hearing,  would,  un- 
der the  circumstances  of  this  case,  have  been  sub- 
stantially the  same  as  if  no  injunction  had  been  sued 
out  at  all.  At  any  rate,  we  are  quite  clear  that  the 
suing  out  of  the  injunction  did  not  make  a  difference 
of  $600, — something  near  one-fourth  of  the  amount  in 
controversy, — and  it  is  only  for  the  additional  expense 
there  should  have  been  a  recovery.  AVilson  v.  H?ecker, 
85  111.  349. 

Without  consuming  further  time  in  the  considera- 
tion of  other  questions  raised  upon  the  argument,  suf- 
fice it  to  say  that  outside  of  the  errors  alread}^  indi- 
cated, we  are  satisfied,  upon  a  careful  consideration 
of  the  record,  the  ends  of  justice  will  be  subserved  by 
a  rehearing  of  the  whole  case ;  and  in  view  of  the  fact 
that  some  of  the  pleadings  seem  to  be,  when  consid- 
ered in  the  light  of  the  proofs,  to  some  extent  defec- 
tive, the  judgment  of  the  Appellate  Court  will  be  re- 
versed, and  the  cause  remanded,  with  directions  to 


339 

reverse  the  judgment  of  the  Circuit  Court  and  re- 
mand the  cause  for  a  rehearing,  with  leave  to  both 
parties  to  amend  their  pleadings  and  take  additional 
testimony,  if  they  shall  be  so  advised. 

Judgment  reversed. 
Sheldon,  J.,  concurs  in  the  conclusion. 


JOHNSON  V.  F.  &  M.  R.  RY.  CO., 
Ill  111.  417. 
(1884.) 

Mr.  Chief  Justice  Scholfield  delivered  the  opinion 
of  the  court. 

This  is  a  proceeding  commenced  by  petition,  by  the 
Freeport  and  Mississippi  Eailroad  Company,  to  con- 
demn, under  the  Eminent  Domain  act,  the  whole  of 
lots  10,  11  and  12,  in  block  5,  on  the  east  side  of 
the  Galena  river,  in  the  city  of  Galena,  that  remains 
after  taking  therefrom  a  strip  of  land  ten  feet  in 
width  off  the  east  end  thereof,  conveyed  to  the  Illinois 
Central  Eailroad  Company,  and  after  taking  therefrom 
another  strip  of  ground  off  the  west  end  thereof 
twenty-two  feet  wide,  on  Bouthillier  street,  and  grad- 
ually narrowing  southwardly  to  a  width  of  ten  feet 
on  the  southerly  boundary  line  of  said  lot  10,  conveyed 
to  the  city  of  Galena,  the  title  whereof  is  conceded  to 
be  in  fee  in  Ann  Eliza  Johnson.  The  purpose  of  the 
condemnation  is  for  depot,  station  building,  right  of 
way  for  construction  and  operation  of  main  and  side- 
track, spurs,  switches,  etc. 

At  the  return  day  of  the  writ,  Ann  Eliza  Johnson 
filed  her  cross-petition  in  the  proceeding,  in  which, 
among  other  things,  she  alleged  that  "she  is  the  owner 
of  a  strip  of  ground  off  the  west  end  of  said  lots  10, 
11  and  12,  of  twenty-two  feet,  on  Bouthillier  street, 
narrowing  southwardly  to  ten  feet  in  front  of  lot  10, 
on  Water  street,  in  which  the  right  of  user  was  con- 
veyed to  the  city  of  Galena,  which  strip  is  not  in- 
cluded in  the  petition  for  condemnation;  that  in  and 
by  her  deed  conveying  such  right  of  user  to  the  city 


340 

of  Galena,  which  was  dated  January  25,  1856,  it  was 
stipulated  that  the  conveyance  was  made  on  the  con- 
dition that  the  grounds  so  conveyed  should  be  forever 
kept  and  used  as  a  public  street  and  wharf  for  the 
use  of  the  inhabitants  of  Galena,  and  that  Water  street, 
in  front  of  said  lots,  should  be  kept  and  maintained 
at  all  times  forty-five  feet  wide;  that  in  consequence 
of  the  said  condition  on  which  said  conveyance  was 
executed,  she  has  a  vested  interest  in  so  much  of  said 
Water  street  as  in  front  of  said  lots,  paramount  to 
other  lot  owners  abutting  on  said  street ;  that  the  peti- 
tioner, by  the  line  of  its  contemplated  railroad,  will 
run  over  and  appropriate  to  itself  the  exclusive  use 
of  said  Water  street  in  front  of  said  lots,  under  and 
by  authority  of  an  ordinance  of  the  city  of  Galena, 
which  provides  that  said  petitioner  shall  pay  all  dam- 
ages occasioned  thereby."  The  cross-petition  con- 
cludes, "by  means  whereof  she  will  be  greatly  injured 
and  damaged  in  other  property  she  is  interested  in, 
adjacent  and  within  two  hundred  feet  thereof,  by 
reason  of  taking  said  Water  street  aforesaid,  and 
prays  that  damages  may  be  assessed  under  the  law, 
as  required  by  the  statute,"  etc.  On  motion  of  the 
attorney  for  the  petitioner,  this  cross-petition  was 
stricken  from  the  files.  Afterwards,  Ann  Eliza  John- 
son filed  a  special  plea  to  the  petition,  and  this,  on 
motion  of  the  attorney  for  the  petitioner,  was  also 
stricken  from  the  files. 

When  the  cause  came  on  to  be  heard,  the  attornej^ 
for  Ann  Eliza  Johnson  challenged  the  array  of  jurors, 
and  moved  to  dismiss  the  petition;  but  the  challenge 
was  disallowed,  and  the  motion  to  dismiss  was  over- 
ruled. Her  damages  were  then  assessed,  by  the  ver- 
dict of  the  jury,  at  $2,500,  whereupon  she  moved  for 
a  new  trial,  but  the  court  overruled  the  motion  and 
entered  judgment  upon  the  verdict.  Exceptions  were 
taken  by  Ann  Eliza  Johnson  to  the  various  rulings 
of  the  court  adverse  to  the  contentions  of  her  attor- 
neys, which  were  allowed,  and  she  now  assigns  numer- 
ous errors  in  consequence  of  such  rulings.     Such  of 


341 

them  as  we  deem  important  we  shall  notice  in  consecu- 
tive order. 

First — We  think  the  court  erred  in  striking  the  cross- 
petition  of  Ann  Eliza  Johnson  from  the  files.  The 
constitution  guarantees  as  well  that  private  property 
shall  not  be  damaged,  as  that  it  shall  not  be  taken 
for  public  use  without  just  compensation  (sec.  13,  art. 
2,  of  the  constitution),  and  this  guaranty  is  repeated 
in  the  first  section  of  the  Eminent  Domain  act.  The 
second  section  of  that  act  likewise  makes  provision  for 
assessing  damages  on  account  of  property  damaged, 
as  well  as  on  account  of  property  taken  for  public 
use.  AVliere  some  property  is  damaged  and  other 
property  is  taken  for  public  use  at  the  same  time, 
in  many  instances  it  would  seem  to  be  almost  indis- 
pensable to  the  ends  of  justice  that  the  questions 
should  be  considered  together,  and  hence  there  ought 
to  be  some  way  by  which,  if  the  petitioner  neglect  to 
include  in  his  petition  all  property  damaged  as  well 
as  all  property  taken,  it  could  be  brought  before  the 
court.  Obviously,  the  most  convenient  way  to  do  this 
is  by  cross-petition.  It  is  true  the  statute  makes  ex- 
press provision  for  filing  a  cross-petition  only  by  a 
person  interested  who  is  not  made  a  defendant;  but 
this,  by  implication,  would  seem  to  recognize  the  right 
of  a  person  already  made  defendant,  whose  interests 
are  not  fully  or  accurately  stated  in  the  petition,  to  file 
a  cross-petition  for  that  purpose.  It  surely  could  never 
have  been  intended  that  a  person  whose  name  or  in- 
terest is  not  mentioned  in  the  petition  may  come  in 
by  cross-petition,  describe  his  interest  and  have  his 
rights  adjudicated,  and  yet  a  person  who  is  summoned 
as  defendant  shall  be  denied  the  privilege  of  being 
allowed  to  accurately  describe  his  interest  in  a  cross- 
petition  and  have  his  rights  adjudicated.  The  right 
to  file  a  cross-petition,  by  the  analogies  of  the  law, 
would  seem  to  result  as  an  incident  from  the  right 
to  file  the  petition,  and  so  we  have  held  that  a  cross- 
petition  is  an  appropriate  mode  of  bringing  before 
the  court  x)i'operty  of  the  defendant  taken  or  dam- 
aged and  not  described  in  the  petition.     Mix  v.  La- 


342 

fayette,  Bloomington  and  Mississippi  R.  R.  Co.,  67  111. 
319 ;  Jones  v.  Chicago  and  Iowa  R.  R.  Co.,  68  id.  380 ; 
Galena  and  Southern  Wisconsin  R.  R.  Co.  v.  Birkbeck, 
70  id.  208. 

This  cross-petition  distinctly  shows  an  ownership 
of  the  defendant,  Ann  Eliza  Johnson,  in  the  fee  of 
certain  soil  theretofore  conveyed  to  the  city,  adjacent 
to  Water  street, — an  implied  obligation  on  the  part  of 
the  city  to  keep  that  street  open  in  front  of  her  prop- 
erty, forty- five  feet  wide;  that  the  petitioner  will  run 
over  and  appropriate  the  exclusive  use  of  that  street 
in  front  of  her  property,  and  that  she  will  be  dam- 
aged thereby.  There  is,  undoubtedly,  an  insufficient 
description  of  the  property  claimed  to  be  damaged, 
and  precisely  how  it  will  be  damaged;  but  this  can 
be  remedied  by  amendment.  Had  the  petitioner  de- 
murred to  the  cross-petition,  instead  of  moving  to 
strike  it  from  the  files,  the  demurrer  should  have  been 
sustained ;  but  then  the  party  would  have  been  allowed 
to  amend,  and  might  thus  have  brought  before  the 
court  such  a  claim  for  damages  as  she  would  have  been 
entitled  to  have  adjudicated  in  this  proceeding.  The 
rule  in  equity  is,  a  bill  will  not  be  dismissed,  on  motion, 
unless  it  be  for  want  of  equity  apparent  on  the  face 
of  the  bill,  and  where  it  is  manifest  no  amendment 
could  help  it,  or  for  want  of  jurisdiction;  (Thomas, 
Trustee,  v.  Adams  et  al.,  30  111.  37;)  and  at  law,  if  a 
plea  be  insufficient  in  form  or  substance,  the  only  mode 
of  taking  advantage  of  the  defect  is  by  demurrer.  It 
is  improper  in  such  case  to  strike  the  plea  from  the 
files.    Orne  v.  Cook,  31  111.  238. 

Second — We  have  held  in  Smith  v.  Chicago  and 
Western  Indiana  R.  R.  Co.,  105  111.  511,  that  under  the 
Eminent  Domain  act  an  answer  is  not  allowable,  and 
the  principle  includes  a  plea.  The  plea  was  therefore 
properly  stricken  from  the  files. 

Third — The  objections  that  inasmuch  as  the  petition 
was  filed  in  vacation,  the  cause  could  not  be  tried 
at  a  regular  term,  is  untenable,  and  the  challenge  inter- 
posed to  the  array  of  jurors,  and  motion  to  dismiss 
the  petition  based  on  that  objection,  were  properly  dis- 


343 

allowed  and  overruled.  We  held  in  Bowman  et  al.  v. 
Venice  and  Carondelet  Ry.  Co.,  102  111.  468,  et  seq., 
that  a  proceeding  of  this  character,  though  commenced 
in  vacation,  may  be  tried,  as  was  here  done,  in  term 
time. 

Fourth — We  are  unable  to  say  whether  the  court 
properly  rejected,  as  evidence,  the  deed  from  Lucj^  N. 
Wight  to  the  city  of  Galena,  and  the  deed  from  Lucy 
N.  Wight  to  Ann  Eliza  Johnson,  and  ordinance  of 
the  city  of  Galena,  as  offered  to  be  read  by  the  attor- 
ney for  Ann  Eliza  Johnson,  because  they  are  not  set 
forth  in  the  bill  of  exceptions  or  certificate  of  evi- 
dence. They  may  or  may  not  have  been  properly 
excluded.  This  can  only  be  determined  by  an  inspec- 
tion of  their  contents,  and  the  burden  is  on  the  party 
alleging  error  to  affirmatively  show  its  existence. 

Fifth — The  objection  that  opinions  of  witnesses  not 
shown  to  have  been  experts,  were  received  in  regard 
to  the  value  of  the  property  sought  to  be  taken  is  not 
tenable.  Persons  who  are  familiar  with  the  land,  and 
have  an  opinion  of  its  value,  are  competent  to  express 
that  opinion.  But  the  weight  of  such  evidence  pre- 
sents a  different  question.  On  that  point,  where  there 
is  equal  credibility,  superior  opportunity  and  intelli- 
gence would,  of  course,  be  entitled  to  the  greater 
weight  (AVhite  et  al.  v.  Hermann,  51  111.  243;  Keiths- 
burg  and  Eastern  R.  R.  Co.  v.  Henry,  79  111.  290.) 
Such  opinions  of  witnesses  are  not  to  be  passively  re- 
ceived and  blindly  followed,  but  they  are  to  be  weighed 
by  the  jury,  and  judged  of  in  view  of  all  the  evidence 
in  the  case  and  the  jury's  own  general  knowledge  of 
affairs,  and  have  only  such  consideration  given  to  them 
as  the  jury  may  believe  them  entitled  to  receive.  Mc- 
Reynolds  et  al.  v.  Burlington  and  Ohio  River  Ry.  Co., 
106  111.  152. 

Sixth — On  the  trial  there  were  offers  by  the  defend- 
ant, Ann  Eliza  Johnson,  to  prove  that  the  property 
sought  to  be  condemned  had  a  special  value  for  rail- 
road purposes  bej^ond  its  general  market  value,  and 
also  that  certain  prices  had  been  offered  for  the  prop- 
erty, within  a  few  months  of  the  time  of  the  trial,  above 


S44 

the  general  market  value, — all  of  whicE,  on  objection, 
the  court  refused  to  allow  to  be  proved;  and,  consist- 
ently with  such  ruling,  the  court,  among  other  things, 
at  the  instance  of  the  petitioner,  instructed  the  jury: 

"The  jury  are  instructed  by  the  court,  that  the  evi- 
dence of  certain  witnesses  as  to  what  they  would  give 
for  the  property  in  controversy,  is  not  proper  evidence 
for  the  jury  to  consider  in  making  up  their  verdict  in 
this  case,  that  such  testimony  was  ruled  out  by  the 
court,  and  should  not  be  considered  by  the  jury." 

In  these  rulings  we  hold  there  was  error.  In  St. 
Louis,  Jerseyville  and  Springfield  R.  R.  Co.  v.  Kirby, 
104  111.  345,  we  held  that  it  is  competent  to  show,  in 
such  cases,  that  the  land  proposed  to  be  taken  has  a 
special  value  to  the  owner  by  reason  of  a  special  prof- 
itable use,  and  he  is  entitled  to  compensation  for  the 
loss  occasioned  by  deprivation  of  such  special  use.  In 
that  case  the  use  was  that  of  a  training  track.  It  was 
said:  "The  value  of  land  consists  in  its  fitness  for 
use,  present  or  future,  and  before  it  can  be  taken  for 
public  use  the  owner  must  have  just  compensation.  If 
he  has  adopted  a  peculiar  mode  of  using  that  land,  by 
which  he  derives  profit,  and  he  is  deprived  of  that  use, 
justice  requires  that  he  be  compensated  for  the  loss. 
That  loss  is  the  loss  to  himself.  It  is  the  value  which 
he  has,  and  of  which  he  is  deprived,  which  must  be 
made  good  by  compensation."  And  upon  like  prin- 
ciple we  held  in  Lake  Shore  and  Michigan  Southern 
Ry.  Co.  et  al.  v.  Chicago  and  Western  Indiana  R.  R. 
Co.,  100  111.  21,  that  where  land  has  no  market  value, 
from  the  fact  of  its  being  used  as  a  right  of  way  for  a 
railroad,  and  devoted  to  a  special  use  of  making  rail- 
road transfers,  estimates  of  its  value  with  reference 
to  such  use,  by  those  competent  to  speak  in  that  re- 
gard, should  be  received  on  the  question  of  compensa- 
tion to  be  paid  for  its  condemnation  for  the  use  of 
another  railroad  company  for  its  right  of  way.  And 
in  Lafayette,  Bloomington  and  Mississippi  R.  R.  Co. 
V.  Winslow  et  al.,  66  111.  219,  it  was  said:  "As  land 
and  city  lots  have  no  standard  value,  it  is  right  and 


345 

necessary  to  take  the  opinions  of  witnesses,  and  to  hear 
the  facts  upon  which  such  opinions  are  founded. ' ' 

The  principle  recognized  in  these  cases  clearly  leads 
to  this:  If  property  has  a  special  value,  from  what- 
ever cause,  that  special  value  belongs  to  the  owner  of 
the  property,  and  he  is  entitled  to  be  paid  it  by  the 
party  seeking  condenmation.  In  determining  the  value 
of  real  property  in  such  cases,  to  the  owner,  witnesses 
may  give  their  opinions,  and  any  special  circumstances 
upon  which  those  opinions  are  founded,  for  what  they 
are  worth. 

For  the  errors  indicated,  the  judgment  is  reversed 
and  the  cause  remanded. 

Judgment  reversed. 


FIRST  NAT.  BANK  OF  CHICAGO  v.  BAKER. 

161  111.  281. 

(1896.) 

Cartwright,  J.  Appellee  is  receiver  of  the  Corey 
Car  &  Manufacturing  Company,  appointed  by  the  Cir- 
cuit Court  of  Cook  county  in  pursuance  of  a  bill  filed 
by  Henry  S.  Jaffray  against  that  corporation.  Apel- 
lant  filed  its  petition  in  the  suit,  alleging  an  indebted- 
ness of  the  defendant  corporation  to  it,  evidenced  by 
promissory  notes,  and  secured  by  a  chattel  mortgage 
executed  by  the  defendant  prior  to  the  commencement 
of  the  suit.  The  prayer  of  the  petition  was  that  the 
receiver  should  be  ordered  to  pay  the  indebtedness 
secured  by  the  mortgage,  or  to  deliver  up  the  mort- 
gaged property  to  be  dealt  with  in  accordance  with 
the  terms  of  the  mortgage,  or  that  the  receiver  should 
be  ordered  to  sell  the  property,  and,  from  the  proceeds 
of  the  sale,  pay  the  petitioner  the  amount  of  its  mort- 
gage. The  petition  was  answered  by  the  receiver. 
It  was  also  answered  by  Lesh,  Sanders  &  Egbert  Com- 
pany and  S.  D.  Kimbark,  who  were  creditors  of  the 
receiver,  denying  the  right  of  the  petitioner,  and  claim- 
ing an  estoppel  against  the  enforcement  of  the  mort- 
gage.    Upon  a  hearing,  the  prayer  of  the  petition  was 


346 

denied,  and  it  was  dismissed  at  the  cost  of  the  peti- 
tioner. That  decree  has  been  affirmed  by  the  Appel- 
late Court. 

A  certificate  of  evidence  appears  in  the  record,  but 
it  does  not  purport  to  contain  all  the  evidence  intro- 
duced on  the  hearing  of  the  petition.  Where  a  decree 
is  entered  granting  relief,  the  rule  is  that  the  decree 
must  be  justified  either  by  facts  which  it  specifically 
finds,  or  by  evidence  appearing  in  the  record.  White 
V.  Morrison,  11  111.  361 ;  Bennett  v.  Whitman,  22  111. 
448 ;  James  v.  Bushnell,  28  111.  158 ;  Mcintosh  v.  Saun- 
ders, 68  111.  128;  Marvin  v.  Collins,  98  111.  510.  But  a 
decree  dismissing  a  bill  or  petition  needs  no  evidence 
to  support  it.  It  is  supported  by  the  absence  of  any 
evidence,  since  that  is  the  proper  decree  in  case  there 
is  no  evidence,  or  if  the  evidence  is  insufficient  to 
authorize  the  relief  asked  for.  Ryan  v.  Sanford,  133 
111.  291,  24  N.  E.  428;  Jackson  v.  Sackett,  146  111.  646, 
35  N.  E.  234;  Alexander  v.  Alexander,  45  111.  App.  211. 
The  decree  dismissing  the  petition  in  this  case  cannot 
be  reversed  because  the  relief  was  denied,  unless  ap- 
pellant shall  show  that  the  evidence  was  such  as  to 
entitle  it  to  the  relief  asked  for.  In  order  to  do  this, 
the  whole  of  the  evidence  must  be  preserved;  other- 
wise it  will  be  presumed  that  there  was  evidence  which 
justified  the  finding.  Corpus  v.  Teed,  69  111.  205 ;  Allen 
v.  LeMoyne,  102  111.  25 ;  Groenendyke  v.  Coffeen,  109  111. 
325;  Brown  v.  Miner,  128  111.  148,  21  N.  E.  223. 

The  fact  that  the  solicitors  for  appellee  indorsed  the 
certificate  "O.K.,"  over  their  signatures,  is  insisted 
upon  as  ground  for  the  claim  that  the  certificate  must 
be  considered  as  containing  all  the  evidence.  This, 
however,  does  not  follow.  The  indorsement  was  an 
acknowledgment  of  the  correctness  of  the  certificate 
for  what  it  purports  to  be,  but  the  approval  of  the 
certificate  could  not  be  extended  beyond  what  appeared 
in  it. 

It  is  also  argued  that  it  appears  elsewhere  in  the 
record  that  the  certificate  of  evidence  contained  a 
complete  statement.  This  claim  is  founded  on  the 
fact  of  the  recital  in  the  decree  that  two  witnesses 


therein  named  were  examined  in  open  court.  But  this 
recital  does  not  show  that  all  the  evidence,  even  of 
those  witnesses,  is  contained  in  the  certificate;  and 
it  appears,  both  from  the  certificate  and  the  decree, 
that  there  was  other  evidence  than  the  testimony  of 
these  witnesses  introduced,  and  considered  by  the 
court.  There  is  nothing  in  the  record  which  will  aid 
the  certificate,  and  the  rule  that  cases  shall  not  be  re- 
versed on  a  partial  statement  of  the  evidence  is  of  too 
great  importance  to  be  disregarded. 

One  of  the  findings  of  the  decree  was  that  the  mort- 
gage was  not  acknowledged  by  the  defendant  corpora- 
tion according  to  law;  and,  the  acknowledgment  ap- 
pearing upon  the  face  of  the  mortgage,  and  being  un- 
affected by  any  question  of  evidence,  it  is  argued  that 
this  court  should  determine,  as  a  matter  of  law,  whether 
the  acknowledgment  was  valid.  Whatever  the  conclu- 
sion might  be  as  to  that  question,  or  however  erroneous 
the  finding,  as  a  matter  of  law,  might  be  held,  the  ap- 
pellant would  not  be  aided,  because  the  court  further 
finds  in  the  decree,  as  a  matter  of  fact,  that  the  peti- 
tioner is  equitably  estopped  from  enforcing  the  mort- 
gage against  the  lawful  creditors  of  the  receiver.  The 
fact  is  found  upon  the  evidence,  and,  if  correct,  the 
decree  must  be  sustained,  whether  the  acknowledg- 
ment was  legal  or  not.  As  the  record  does  not  purport 
to  contain  all  the  evidence  upon  which  the  decree  de- 
nying the  relief  was  founded,  the  judgment  of  the  Ap- 
pellate Court  must  be  affirmed. 

Judgment  affirmed. 


BATES  V.   SKIDMORB. 

170  111.  233. 

(1897.) 

Magruder,  J.  The  only  question  which  we  deem  it 
necessary  to  consider  in  this  case  is  whether  or  not 
the  Circuit  Court  erred  in  overruling  the  motion  made 
by  the  complainant  below  (the  appellant  here)  to  dis- 
miss the  bill  without  prejudice  at  her  own  cost.     It  is 


348 

assigned  for  error  that  the  Circuit  Court  erred  in  de- 
nying and  overruling  said  motion.  We  are  unable  to 
see  why  said  motion  should  not  have  been  allowed. 
It  is  true  that  when  the  motion  to  dismiss  was  made, 
on  January  12,  1897,  the  cause  had  theretofore,  to-wit, 
on  December  16,  1896,  been  referred  to  a  master;  but 
no  proof  had  been  introduced,  nor  had  any  other  steps 
of  any  kind  been  taken  before  the  master,  when  the 
motion  was  made  on  January  12,  1897.  This  court 
has  decided  that  a  complainant  may  dismiss  his  or  her 
bill  at  any  time  before  decree,  when  no  cross-bill  has 
been  filed.  Reilly  v.  Reilly,  139  111.  180,  28  N.  E.  960; 
Langlois  v.  Matthiessen,  155  111.  230,  N.  E.  496.  It  is 
not  denied  by  appellee  that,  if  this  had  been  a  mere 
motion  to  dismiss  the  bill,  appellant  would  have  been 
entitled  to  have  it  allowed.  But  it  is  said  that  this 
was  a  motion,  not  merely  to  dismiss  the  bill,  but  to 
dismiss  it  without  prejudice.  It  is  then  contended  that 
it  is  within  the  discretion  of  the  trial  court  to  grant 
a  motion  to  dismiss  a  bill  in  chancery  without  preju- 
dice, or  to  deny  it;  that  the  court  was  not  bound  to 
exercise  its  discretion  in  favor  of  a  dismissal  of  the 
bill  without  prejudice  unless  some  good  reason  was 
given  why  it  should  be  dismissed;  and  that  in  the 
present  case,  as  no  such  good  reason  was  given,  and  as 
there  was  no  abuse  of  its  discretion  by  the  court,  the 
refusal  to  dismiss  cannot  be  here  insisted  upon  as 
error.  In  Reilly  v.  Reilly,  supra,  it  was  said  that 
there  were  some  cases  which  hold  that  a  chancellor 
has  a  discretion,  and  may,  in  certain  cases,  likely  to 
work  a  hardship  to  a  defendant,  refuse  to  allow  a  com- 
plainant to  dismiss  his  bill;  but  it  was  also  there  said 
that  such  cases  were  not  in  harmony  with  the  current 
of  authority,  and  that  we  were  not  inclined  to  change 
the  rule  already  adopted  by  this  court,  in  order  to 
follow  such  cases.  In  Langlois  v.  Matthiessen,  supra, 
we  sustained  the  action  of  the  Circuit  Court  in  dis- 
missing a  bill  without  prejudice  upon  motion  of  the 
complainant,  although  the  cause  had  been  heard  upon 
the  evidence  as  reported  to  the  court  by  the  master. 
In  the  case  last  mentioned  we  said:     "In  the  case  at 


349 

bar  there  had  not,  so  far  as  the  record  discloses,  been 
any  determination  of  the  rights  of  either  party,  and 
there  is  nothing  in  the  record  to  show  that  there  was 
any  abnse  of  discretion  by  the  trial  court  in  permitting 
the  bill  to  be  dismissed  without  prejudice."  It  might 
naturally  be  inferred  from  this  language  that  the  right 
to  dismiss  without  prejudice  is  a  matter  of  discretion 
with  the  court,  but  it  was  not  there  intended  to  lay 
down  any  such  general  rule.  Where  a  bill  is  dismssed 
without  any  consideration  of  the  merits,  and  before 
decree,  even  though  the  order  of  dismissal  does  not 
contain  the  words  "without  prejudice,"  the  judgment 
or  decree  of  dismissal  is  not  res  judicata,  and  consti- 
tutes no  bar  to  a  new  proceeding  for  the  same  cause 
of  action  between  the  same  parties.  Such  termination 
of  the  suit  leaves  the  parties  as  if  no  legal  proceedings 
had  been  taken.  6  Enc.  PI.  &  Prac,  pp.  986,  987; 
Eichards  v.  Railway  Co.,  124  111.  516,  16  N.  E.  909; 
Chamberlain  v.  Sutherland,  4  111.  App.  494.  The  same 
is  true  where  the  order  is  that  the  bill  be  dismissed 
"without  prejudice."  In  other  words,  the  dismissal 
of  a  bill  by  a  complainant  upon  his  own  motion  before 
the  merits  are  considered,  and  the  dismissal  of  such 
a  bill  by  the  complainant  upon  his  own  motion  without 
prejudice,  have  the  same  effect,  to  the  extent  that 
neither  is  a  bar  to  a  new  proceeding  for  the  same 
cause  of  action  between  the  same  parties.  In  Ray  v. 
Adden,  50  N.  H.  84,  which  was  a  bill  for  divorce  hied 
by  a  husband  against  his  wife,  and  where  an  entry 
was  made  that  the  suit  was  "dismissed  without  preju- 
dice," those  words  were  held  to  indicate  that  the  bill 
was  not  dismissed  upon  the  merits  of  the  case,  or  be- 
cause the  equities  were  shown  to  be  with  the  defend- 
ant. In  Kempton  v.  Burgess,  136  Mass.  192,  it  was 
said:  "It  is  a  matter  of  course  to  permit  a  plaintiff 
to  dismiss  his  bill  at  any  time  before  hearing,  upon 
payment  of  the  costs.  *  *  *  Such  an  order  of  dis- 
missal is  in  the  nature  of  a  nonsuit  at  law,  and  not  a 
bar  to  another  bill.  *  *  *  When  a  bill  is  dismissed 
upon  the  motion  of  the  plaintiff,  it  is  a  safe  and  con- 
venient practice,  and  we  think  it  is  our  usual  practice, 


350 

to  dismiss  it  without  prejudice."  This  authority  cer- 
tainly holds  that  a  dismissal  of  a  bill  by  a  complainant 
at  his  own  costs  at  any  time  before  hearing  is  the  same 
as  a  dismissal  of  it  "without  prejudice. ' '  In  Vaneman 
V.  Fairbrother,  7  Blackf.  541,  where  a  complainant  in 
chancery  moved  the  court  to  dismiss  the  bill  "without 
prejudice,"  and  the  court  refused  so  to  dismiss  the 
bill,  but  dismissed  it  "with  prejudice,"  it  was  held 
that  the  dismissal  would  be  no  bar  to  another  suit  for 
the  same  cause;  and  it  was  there  said,  in  the  opinion 
deciding  the  case:  "Had  the  order  of  dismission  con- 
tained the  words  'without  prejudice,'  as  desired  by 
the  complainant,  it  would  have  afforded  no  more  secur- 
ity to  its  rights  than  it  would  without  them;  and  the 
insertion  of  the  words  'with  prejudice,'  as  insisted  on 
by  the  court,  does  not  render  the  order  of  dismission 
peremptory,  like  a  decree  of  dismission  on  the  merits. 
Either  set  of  words  is  unmeaning  in  an  order  of  dis- 
missal on  the  motion  of  the  complainant  without  a 
final  hearing,  as  it  would  have  been  had  the  cause  been 
dismissed  on  motion  of  the  defendants  for  want  of 
prosecution."  1  Beach,  Mod.  Eq.  Prac,  §§450,  463. 
Under  the  view  thus  presented,  it  would  appear  that 
a  complainant  would  have  the  same  right  to  dismiss 
his  bill  without  prejudice  at  his  own  cost  before  a 
hearing,  as  to  dismiss  it  at  his  own  cost  before  a  hear- 
ing, without  stating  in  the  order  that  it  was  so  dis- 
missed without  prejudice.  If  this  rule  is  to  prevail, 
it  certainly  was  error  in  the  court  below  not  to  grant 
the  complainant's  motion  to  dismiss  her  bill  without 
prejudice,  under  the  circumstances.  But  it  is  true 
that  some  authorities  hold  that  the  propriety  of  per- 
mitting a  complainant  to  dismiss  his  bill  without  preju- 
dice rests  in  the  sound  discretion  of  the  court.  Adams, 
Eq.,  p.  375,  note  2;  Conner  v.  Drake,  1  Ohio  St.  170; 
Chicago  &  A.  K.  R.  Co.  v.  Union  Rolling-Mill  Co.,  109 
U.  S.  702,  3  Sup.  Ct.  594.  But,  where  it  is  a  matter 
of  the  discretion  of  the  court,  such  discretion  must  be 
a  sound,  legal  discretion,  and  must  be  exercised  with 
reference  to  the  rights  of  both  parties.  Beach,  in  the 
first  volume  of  his  work  on  Modern  Equity  Practice, 


351 

at  §450,  says:  "It  is  very  clear,  from  an  examination 
of  the  authorities,  English  and  American,  that  the 
right  of  a  complainant  to  dismiss  his  bill  without  preju- 
dice, on  payment  of  the  costs,  is  of  course,  except  in 
certain  cases."  One  of  the  exceptions  is  that  a  court 
may  refuse  permission  to  dismiss  a  bill  without  preju- 
dice if  such  a  dismissal  would  work  a  prejudice  to  the 
other  party.  It  is  not  regarded  as  prejudice  to  the 
defendant  that  the  complainant  dismisses  his  own  bill, 
simply  because  the  complainant  may  file  another  bill 
for  the  same  matter.  Another  exception  is  that  such 
order  of  dismissal  should  not  be  made  where  the  de- 
fendant has  been  put  to  the  trouble  of  making  his  de- 
fense. 1  Beach,  Mod.  Eq.  Prac,  §  450 ;  Bank  v.  Rose, 
1  Rich.  Eq.  294;  Chicago  &  A.  R.  R.  v.  Union  Rolling- 
Mill  Co.,  supra.  In  the  case  at  bar  we  are  unable  to 
discover  that,  if  appellant's  motion  to  dismiss  had  been 
granted  at  the  time  it  was  made,  the  appellee  would 
have  been  prejudiced  in  any  other  way  than  that  she 
might  be  liable  at  some  future  time  to  become  defend- 
ant to  another  bill  of  the  same  character.  At  the  time 
when  appellant's  motion  was  made,  appellee  had  not 
been  put  to  any  trouble  in  making  her  defense ;  nor,  at 
that  time,  had  it  been  made  manifest  that  she  was  en- 
titled to  a  decree  in  her  favor.  Therefore,  even  if  the 
rule  is  to  prevail  that  the  granting  or  refusing  of  a 
complainant's  motion  to  dismiss  the  bill  at  his  or  her 
own  cost  before  a  hearing  is  within  the  sound  dis- 
cretion of  the  court,  we  discover  no  reason  upon  the 
face  of  this  record  why  such  discretion  should  not  have 
been  exercised  in  favor  of  appellant's  motion.  The 
costs  in  this  case  accruing  up  to  the  time  of  making 
the  motion  to  dismiss,  and  including  such  motion, 
should  be  paid  by  the  appellant,  but  all  costs  incurred 
subsequently  to  the  refusal  of  the  court  to  grant  such 
motion  should  be  paid  by  the  appellee.  With  this 
direction  as  to  the  division  and  payment  of  the  costs, 
the  decree  of  the  Circuit  Court  is  reversed,  and  the 
cause  is  remanded  to  that  court,  with  directions  to  dis- 
miss appellant's  bill  without  prejudice. 

Reversed  and  remanded. 


352 

CRAWFORD  V.  BELL, 

95  111.  App.  427. 

(1900.) 

Mk.  Justice  Seaes  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  an  interlocutory  order  grant- 
ing an  injunction.  By  the  order  appellant  and  others 
were  restrained  from  the  prosecution  of  some  hundred 
attachment  suits  brought  by  appellant  against  the  var- 
ious appellees.  The  original  bill  of  complaint  was  filed 
by  Asa  Bell,  who  was  made  a  defendant  in  one  of  the 
attachment  suits,  and  the  other  appellees,  who  were 
severally  defendants  in  other  attachment  suits  brought 
by  appellant,  filed  their  intervening  petitions  in  the 
cause.  The  relief  asked  by  the  original  bill  of  com- 
plaint and  by  each  intervening  petition  was  the  same, 
viz.,  that  the  further  prosecution  of  the  attachment 
suits  be  enjoined.  Neither  the  bill  of  complaint  nor 
any  of  the  intervening  petitions  was  verified.  No 
affidavits  were  presented  in  support  of  the  motion  for 
a  temporary  injunction.  The  order  granting  the  in- 
junction recites  that  "the  court  having  heard  the  testi- 
mony of  the  defendants  and  other  witnesses  taken  in 
open  court,  etc.,  and  being  fully  advised  in  the  prem- 
ises does  order,"  etc.  But  the  order  does  not  recite 
any  facts  found  from  such  testimony. 

The  order  cannot  be  sustained.  It  is  not  necessary 
to  consider  any  other  ground  of  objection  except  the 
Tack  of  any  evidence  to  support  the  unverified  allega- 
tions of  the  bill  of  complaint.  This  bill  of  complaint 
was  not  sworn  to  by  any  one,  and  was  not  even  signed 
by  the  complainant,  but  by  his  solicitor  only.  No 
affidavits  were  filed  in  support  of  the  bill,  and  the 
evidence  heard  by  the  chancellor  is  not  preserved  by 
a  certificate  of  the  evidence  or  by  specific  findings  of 
fact  in  the  decree.  The  order  can  not  be  permitted 
to  thus  rest  upon  the  mere  unverified  allegations  of  a 
bill  of  complaint.  It  has  been  repeatedly  held  by  this 
court  that  to  warrant  the  issuing  of  a  temporary  in- 


353 

junction  upon  the  allegations  of  a  bill  of  complaint, 
these  allegations  must,  in  their  material  parts,  be  veri- 
fied, and  that  such  verifications  must  be  positive  and 
not  merely  upon  information  and  belief.  The  Board 
of  Trade  v.  Eiordan,  94  111.  App.  298,  and  cases  therein 
cited. 

Here  there  was  no  verification  whatever.  The  re- 
cital in  the  order  that  evidence  was  heard  by  the  chan- 
cellor in  open  court,  does  not  avail,  for  that  evidence 
is  not  preserved.  It  is  a  well  established  rule  of  our 
chancery  practice,  that  an  order  or  decree  granting 
aflfirmative  relief  must  have  support  in  the  record, 
either  by  finding  of  specific  facts  in  the  decree,  or  by 
depositions,  or  by  evidence  contained  in  the  report  of  a 
master  in  chancery  or  by  certificate  of  the  evidence. 
Wliite  V.  Morrison,  11  111'.  361 ;  Ward  v.  Owens,  12  111. 
283;  Nichols  v.  Thornton,  16  111.  113:  Bennett  v.  Wliit- 
man,  22  111.  448;  James  v.  Bushnell,  28  111.  158;  Waugh 
V.  Bobbins,  33  111.  181;  Quigley  v.  Boberts.  44  111.  503; 
Wilhite  V.  Pearce,  47  111.  413;  Driscoll  v.  Tannock,  76 
m.  154;  Marvin  v.  Collins,  98  Bl.  510;  Baird  v.  Pow- 
ers, 131  Bl.  66;  Bonnell  v.  Lewis,  3  111.  App.  283;  Up- 
dike V.  Parker,  11  111.  App.  356;  Gage  v.  Eggleston,  26 
111.  App.  601 ;  Bump  v.  Bump,  94  111.  App.  582. 

At  common  law  it  rests  upon  the  party  attacking  the 
judgment  to  preserve  the  evidence,  if  he  desires  to 
question  its  sufficiency;  but  in  chancery  it  rests  upon 
the  party  in  whose  favor  the  decision  grants  relief  to 
preserve  in  some  manner,  in  the  decree  itself  or  else- 
where in  the  record,  the  evidence  which  sustains  and 
warrants  the  decree.  Hughs  v.  Washington,  65  111. 
245. 

And  this  rule  of  practice  applies  as  well  to  other 
orders  in  a  suit  in  chancery  as  to  the  final  decree.  Al- 
bright V.  Smith,  68  Bl.  181;  Stinnett  v.  Wilson,  19  111. 
App.  38. 

In  no  manner  is  the  evidence  preserved  in  this  rec- 
ord to  support  the  order  appealed  from.  It  must 
therefore  be  reversed.  The  order  is  reversed  and  the 
cause  is  remanded. 


354 

TITUS  V.  MABEE, 

25  111.  232. 

(1851.) 

Mr.  Justice  Walker  delivered  the  opinion  of  the 
court. 

This  was  a  bill  filed,  by  the  trustees  of  the  bondhold- 
ers of  the  St.  Louis,  Alton  and  Chicago  Railroad, 
against  Mabee,  Pitts  and  Brown, — the  first  two,  judg- 
ment creditors  of  the  road,  and  the  last  the  sheriff  of 
Madison  county.  The  object  of  the  bill  was  to  enjoin 
the  sheriff  from  selling  a  freight  car,  an  iron  safe 
and  an  iron  planing  machine,  to  satisfy  executions 
which  had  been  issued  on  their  judgments.  On  the 
sixth  day  of  April,  1857,  the  railroad,  with  its  lands, 
track,  furniture,  equipments  and  personal  property, 
was  conveyed  to  complainants  in  trust,  to  secure  bond- 
holders of  the  road  in  their  debts  and  accruing  interest. 
The  bill  alleges  that  the  property  levied  upon,  under 
the  executions,  is  the  same  that  was  held  by  the  road, 
and  embraced  in  the  deed  of  trust,  or  has  been  subse- 
quently acquired,  and  is  essential  to  the  prosperity  of 
the  road.  The  court  below  dissolved  the  injunction, 
from  which  decision  the  complainants  appeal  to  this 
court. 

It  is  first  urged  that  the  decree  of  the  court  below 
is  not  final,  and  is  therefore  not  the  subject  of  review  in 
this  court.  The  only  relief  sought  by  the  bill,  was  to 
enjoin  the  sale  of  the  property  under  the  executions, 
and  when  defendants  entered  their  motion  to  dissolve 
the  temporary  injunction,  it  was  for  the  want  of  equity 
appearing  on  the  face  of  the  bill.  The  motion  operated 
precisely  as  a  demurrer,  and  by  it  the  defendant  admit- 
ted the  truth  of  all  the  allegations  relied  upon  to  entitle 
the  complainants  to  an  injunction.  The  practice  is  to 
allow  either  a  demurrer  to  the  bill,  or  a  motion  to  dis- 
solve the  injunction,  and  either  course  produces  pre- 
cisely the  same  result,  so  far  as  the  injunction  is  con- 
cerned. On  sustaining  the  demurrer,  or  allowing  the 
motion,  the  temporary  injunction  is  in  either  case  dis- 


355 

solved,  and  if  no  other  relief  is  sought,  the  case  is 
virtually  at  an  end.  If  the  bill  were  retained,  and  full 
proof  of  all  the  allegations  which  it  contained  was 
made,  the  result  would  not  be  changed.  It  would  only 
be  to  prove  what  is  admitted  by  the  demurrer  or  the 
motion.  If  other  relief  were  sought  by  the  bill,  the 
decree  dissolving  the  injunction  could  not,  however,  be 
regarded  as  final.  But  as  no  other  relief  was  sought 
in  this  case,  we  are  of  the  opinion  that  without  refer- 
ence to  what  has  become  of  the  bill,  the  decree  of  the 
court  is  final,  and  this  court  has  jurisdiction  to  review 
that  decision. 


BARTON  V.  BARBOUR, 

104  U.  S.  126. 
(1881.) 

Me.  Justice  Woods  delivered  the  opinion  of  the 
court. 

This  was  a  suit  brought  by  Frances  H.  Barton,  the 
plaintiff  in  error,  against  John  S.  Barbour,  as  receiver 
of  the  Washington  City,  Virginia  Midland,  and  Great 
Southern  Railroad  Company. 

The  declaration  was  as  follows:  "The  plaintiff, 
Frances  H.  Barton,  sues  the  defendant,  John  S.  Bar- 
bour, as  receiver  of  the  Washington  City,  Virginia 
Midland,  and  Great  Southern  Railroad  Company,  a 
corporation  organized  under  a  law  of  the  State  of 
Virginia,  and  doing  business  and  having  an  office  in 
the  District  of  Columbia,  for  that  the  defendant,  on  the 
eleventh  day  of  January,  1877,  was  running  and  oi^er- 
ating  a  railroad  through  the  State  of  Virginia,  and 
upon  said  railroad  the  defendant  was  a  common  car- 
rier of  freight  and  passengers  for  hire.  That,  on  the 
day  and  year  aforesaid,  the  plaintiff  was  a  passenger 
in  a  sleeping-car  upon  said  railroad,  and  by  reason  of 
a  defective  and  insufficient  rail  upon  the  track  of  said 
railroad  the  car  in  which  the  plaintiff  was  a  passenger 
was  thrown  from  the  track  and  turned  over  down  an 
embankment,  and  she  was  greatly  hurt  and  injured, 


356 

and  her  bodily  health  permanently  injured;  that  the 
defendant  did  not  use  due  care  in  relation  to  said 
defective  rail,  and  the  injury  to  the  plaintiff  was 
occasioned  by  the  negligence  and  carelessness  of  the 
defendant,  but  the  plaintiff  used  due  care.  The  plain- 
tiff claims  $5,000  damages." 

To  this  declaration  the  defendant  below  filed  a  plea 
to  the  jurisdiction,  in  which  he  alleged  that  at  the  time 
of  service  of  process  on  him  he  was  the  receiver  of  all 
the  property,  rights,  and  franchises  of  said  railroad 
company,  by  virtue  of  a  decree  made  by  the  Circuit 
Court  for  the  city  of  Alexandria,  in  the  State  of  Vir- 
ginia, on  July  13,  1876,  in  a  cause  depending  on  the 
equity  side  of  said  court,  wherein  John  C.  Graham,  who 
sued  for  himself  and  others,  was  complainant,  and  said 
railroad  company  and  others  were  defendants ;  that 
said  decree  authorized  him  to  defend  all  actions 
brought  against  him  as  such  receiver,  by  the  leave  of 
said  court,  and  declared  that  he  should  not  in  any  case 
incur  any  personal  or  individual  liability  in  conducting 
the  business  of  said  railroad,  by  reason  of  any  act  done 
by  him  or  his  servants,  he  acting  in  good  faith  and  in 
the  exercise  of  his  best  discretion,  but  that  the  prop- 
erty in  his  hands  as  such  receiver  should  nevertheless 
be  chargeable  with  any  claim  which  might  be  established 
in  any  action  brought  against  him  as  such  receiver 
under  leave  of  the  court  first  had  and  obtained. 

The  plea  then  averred  that  the  plaintiff  had  not  ob- 
tained leave  of  said  court  to  bring  and  maintain  said 
suit.  Wherefore  the  defendant  prayed  judgment 
whether  the  court  could  or  would  take  further  cogniz- 
ance of  said  action. 

The  plaintiff  filed  the  general  demurrer  to  the  plea. 

The  court  below  gave  judgment  overruling  the  de- 
murrer, and  against  the  plaintiff  for  costs.  She  prose- 
cutes this  writ  of  error  to  reverse  that  judgment. 

The  question  presented  by  the  record  is  the  suffi- 
ciency of  the  plea  to  the  jurisdiction  of  the  court. 

The  defendant  insists  that  the  Supreme  Court  of 
the  District  of  Columbia  had  no  jurisdiction  to  enter- 


357 

tain  the  suit  without  leave  of  the  court  by  which  he 
was  appointed  receiver. 

It  is  a  general  rule  that  before  suit  is  brought 
against  a  receiver  leave  of  the  court  by  which  he  was 
appointed  must  be  obtained.  Davis  v.  Gray,  16  Wall. 
203,  and  cases  there  cited.  But  the  learned  counsel  of 
the  plaintiff  in  error  strenuously  contends  that  the 
only  consequence  resulting  from  prosecuting  the  suit 
without  such  leave  is  that  the  plaintiff  may  be  re- 
strained by  injunction  or  attached  for  contempt,  and 
that  the  rule  applies  only  to  cases  where  the  suit  is 
brought  to  take  from  the  receiver  property  whereof  he 
is  in  possession  by  order  of  the  court.  We  conceive 
that  the  rule  is  not  so  limited. 

The  evident  purpose  of  a  suitor  who  brings  his  action 
against  a  receiver  without  leave  is  to  obtain  some  advan- 
tage over  the  other  claimants  upon  the  assets  in  the  re- 
ceiver's hands.  His  judgment,  if  he  recovered  one, 
would  be  against  the  defendant  in  his  capacity  as 
receiver,  and  the  execution  would  run  against  the 
property  in  his  hands  as  such.  Hall  v.  Smith,  2  Bing. 
156;  Camp  v.  Barney,  4  Hun  (N.  Y.)  373;  Common- 
wealth V.  Runk,  26  Pa.  St.  235;  Thompson  v.  Scott,  4 
Dill  508. 

If  he  has  the  right,  in  a  distinct  suit,  to  prosecute 
his  demand  to  judgment  without  leave  of  the  court  ap- 
pointing the  receiver,  he  would  have  the  right  to  en- 
force satisfaction  of  it.  By  virtue  of  his  judgment  he 
could,  unless  restrained  by  injunction,  seize  upon  the 
property  of  the  trust  or  attach  its  credits.  If  his 
judgment  were  recovered  outside  the  territorial  juris- 
diction of  the  court  by  which  the  receiver  was  ap- 
pointed, he  could  do  this,  and  the  court  which  ap- 
pointed the  receiver  and  was  administering  the  trust 
assets  would  be  impotent  to  restrain  him.  The  effect 
upon  the  property  of  the  trust,  of  any  attempt  to  en- 
force satisfaction  of  his  judgment,  would  be  precisely 
the  same  as  if  his  suit  had  been  brought  for  the  pur- 
pose of  taking  property  from  the  possession  of  the  re- 
ceiver. A  suit  therefore,  brought  without  leave  to  re- 
cover judgment  against  a  receiver  for  a  money  demand, 


358 

is  virtually  a  suit  the  purpose  of  which  is,  and  effect 
which  may  be,  to  take  the  property  of  the  trust  from 
his  hands  and  apply  it  to  the  payment  of  the  plaintiff's 
claim,  without  regard  to  the  rights  of  other  creditors 
or  the  orders  of  the  court  which  is  administering  the 
trust  property.  We  think,  therefore,  that  it  is  imma- 
terial whether  the  suit  is  brought  against  him  to  re- 
cover specific  property  or  to  obtain  judgment  for  a 
money  demand.  In  either  case  leave  should  be  first 
obtained. 

And  it  has  been  so  held  in  effect  by  this  court.  In 
Wiswall  V.  Sampson  (14  How.  52),  this  court  said: 
**It  has  been  argued  that  a  sale  of  the  premises  on  exe- 
cution and  purchase  occasioned  no  interference  with 
the  possession  of  the  receiver,  and  hence  no  contempt 
of  the  authority  of  the  court,  and  the  sale,  therefore, 
in  such  a  case  should  be  upheld.  But,  conceding  the 
proceedings  did  not  disturb  the  possession  of  the  re- 
ceiver, the  argument  does  not  meet  the  objection.  The 
property  is  a  fund  in  court  to  abide  the  result  of  the 
litigation,  and  to  be  applied  to  the  payment  of  the 
judgment  creditor  who  has  filed  his  bill  to  remove  im- 
pediments in  the  way  of  his  execution.  If  he  has  suc- 
ceeded in  establishing  his  right  to  the  application  of 
any  portion  of  the  fund,  it  is  the  duty  of  the  court  to 
see  that  such  application  is  made.  And  in  order  to 
effect  this,  the  court  must  administer  it  independently 
of  any  rights  acquired  by  third  persons  pending  the 
litigation.  Otherwise  the  whole  fund  may  have  passed 
out  of  its  hands  before  the  final  decree,  and  the  litiga- 
tion become  fruitless." 

So  in  Ames  v.  Trustees  of  Birkenhead  Docks  (20 
Beav.  332),  Lord  Romilly,  Master  of  the  Rolls,  said 
that  it  is  an  idle  distinction  that  the  rule  forbidding  any 
interference  with  property  in  the  course  of  administra- 
tion in  the  Court  of  Chancery,  only  applies  to  property 
actually  in  the  hands  of  the  receiver,  and  declared  that 
it  applied  to  debts,  rents,  and  tolls,  which  the  receiver 
was  appointed  to  receive. 

It  is  next  asserted  by  the  plaintiff  that  the  fact  that 
the  receiver  in  this  case  is  in  possession  of,  and  is  con- 


359 

ducting  the  business  of,  a  railroad  as  a  common  car- 
rier, takes  his  case  out  of  the  rule  that  he  is  only  an- 
swerable to  the  court  by  which  he  is  appointed,  and 
cannot  be  sued  without  its  leave.  Her  contention  is 
that  parties  who  deal  with  such  a  receiver,  either  as 
freighters  or  passengers  upon  his  railroad,  may  for 
any  injury  suffered,  either  in  person  or  property,  sue 
him  without  leave  of  the  court  by  which  he  was  ap- 
pointed. 

We  do  not  perceive  how  the  fact  that  the  receiver, 
under  the  orders  of  the  court,  is  doing  the  business 
usually  done  by  a  common  carrier  makes  his  case  any 
exception  to  the  rule  under  consideration.  It  was  said 
by  this  court  in  Cowdrey  v.  Galveston,  etc.,  Railroad 
Co.  (93  U.  S.  352),  that  ''the  allowance  for  goods 
lost  in  transportation,  and  for  damages  done  to 
property  whilst  the  road  was  in  the  hands  of  the 
receiver,  was  properly  made.  The  earnings  received 
were  as  much  chargeable  with  such  loss  and  dam- 
age as  they  were  chargeable  with  the  ordinary  ex- 
penses of  managing  the  road.  The  bondholders  were 
only  entitled  to  what  remained  after  charges  of  this 
kind,  as  well  as  the  expenses  incurred  in  their  behalf, 
were  paid."  This  puts  calims  against  the  receiver, 
in  his  capacity  as  a  connnon  carrier,  on  the  same  foot- 
ing precisely  as  the  salaries  of  his  subordinates,  or  as 
claims  for  labor  and  material  used  in  carrying  on  the 
business.  If  a  passenger  on  the  railroad,  who  is  in- 
jured in  person  or  property  by-  the  negligence  of  the 
servants  of  the  receiver,  can,  without  leave,  sue  him  to 
recover  his  damages,  then  every  conductor,  engineer, 
brakeman,  or  track-hand  can  also  sue  for  his  wages 
without  leave.  To  admit  such  a  practice  would  be  to 
allow  the  charges  and  expenses  of  the  administration 
of  a  trust  property  in  the  hands  of  a  court  of  equity 
to  be  controlled  by  other  courts,  at  the  instance  of  im- 
patient suitors,  without  regard  to  the  equities  of  other 
claimants  and  to  permit  the  trust  property  to  be 
wasted  in  the  costs  of  unnecessary  litigation. 

Such  is  not  the  course  and  practice  of  courts  of 
equity  in  administering  a  trust  estate.     The  costs  and 


360 

expenses  of  the  trust  are  allowed  by  the  court  upon  a 
reference  to  its  own  master.  If  the  adjustment  of 
the  claim  involves  any  dispute  in  regard  to  the  alleged 
negligence  of  the  receiver,  or  any  other  fact  upon 
which  his  liability  depends,  or  in  regard  to  the  amount 
of  the  damages  sustained  by  a  party,  the  court,  in  a 
proper  case,  in  the  exercise  of  its  legal  discretion, 
either  of  its  own  motion  or  on  the  demand  of  the 
party  injured,  may  allow  him  to  sue  the  receiver  in  a 
court  of  law,  or  direct  the  trial  of  a  feigned  issue  to 
settle  the  contested  facts. 

The  claim  of  the  plaintiff,  which  is  against  the  re- 
ceiver for  a  personal  injury  sustained  by  her  while 
traveling  on  the  railroad  managed  by  him,  stands  on 
precisely  the  same  footing  as  any  of  the  expenses  in- 
curred in  the  execution  of  the  trust,  and  must  be  ad- 
justed and  satisfied  in  the  same  way. 

We,  therefore,  think  that  the  demand  of  the  plaintiff 
is  not  of  such  a  nature  that  it  may  be  j^rosecuted  by 
suit  without  leave  of  the  court. 

The  plaintiff  lastly  contends  that  want  of  leave  to 
bring  the  suit  does  not  take  away  the  jurisdiction  of 
the  court  in  which  it  was  brought  to  hear  and  determine 
it,  but  only  subjects  the  plaintiff  to  liability  to  be  at- 
tached for  contempt,  or  to  be  enjoined  from  its  further 
prosecution.  In  other  words,  she  says  that  leave  to 
prosecute  the  suit  is  not  a  jurisdictional  fact,  and  that, 
therefore,  the  plea  to  the  jurisdiction  should  not  have 
been  sustained. 

Our  decision  upon  this  question  will  be  limited  to  the 
facts  of  this  case,  which  are  that  the  receiver  was  ap- 
pointed by  a  court  of  the  State  of  Virginia,  and  the 
property  in  course  of  administration  was  in  that  state ; 
the  suit  was  brought  in  a  court  of  the  District  of  Col- 
umbia, a  foreign  jurisdiction,  and  the  cause  of  action 
was  an  injury  received  by  plaintiff  in  the  State  of 
Virginia,  by  reason  of  the  negligence  of  the  defend- 
ant while  carrying  on  the  business  of  a  railroad,  under 
the  orders  of  the  court  by  which  he  was  appointed. 
No  leave  was  obtained  to  bring  the  suit,  and  it  does 
not  appear  that  any  application  was  made,  either  to 


361 

the  receiver  or  to  the  court  by  which  he  was  appointed, 
to  allow  and  pay  the  demand  of  the  plaintiff. 

Upon  these  facts  we  are  of  opinion  that  the  Supreme 
Court  of  the  District  of  Columbia  had  no  jurisdiction 
to  entertain  a  suit. 

This  point  has  been  substantially  settled  by  this 
court  in  the  case  of  Peale  v.  Phipps,  14  How.  386. 

In  that  case  it  appeared  that,  under  a  law  of  the 
State  of  Mississippi,  by  the  decree  of  the  Circuit 
Court  of  Adams  County  in  that  state,  the  charter  of 
the  Agricultural  Bank  at  Natchez  was  declared  for- 
feited and  the  corporation  dissolved,  and  Peale,  the 
plaintiff  in  error,  appointed  trustee  and  assignee  of  its 
assets,  and  was  the  sole  legal  representative  of  the 
corporation;  that  he  became  legally  liable  to  the 
creditors  of  the  bank  to  the  extent  of  the  assets,  and 
that  he  had  assets  in  his  possession  sufficient  to  pay 
all  the  debts  of  the  corporation.  The  defendants  in 
error  claimed  that  there  was  due  them  from  the  bank 
a  large  sum  of  money  on  account  of  mesne  profits,  etc., 
of  certain  real  estate  in  Natchez,  from  which  they  had 
been  unlawfully  expelled  by  the  bank,  and  the  posses- 
sion of  which  they  had  recovered  from  the  bank  in  an 
action  of  ejectment.  The  defendants  in  error  pre- 
sented their  claim  to  Peale,  the  receiver,  for  allowance 
as  a  valid  claim  against  the  bank,  who  refused  to  admit 
or  allow  it,  or  any  part  of  it. 

Thereupon  the  defendant  in  error  brought  suit 
against  Peale  in  the  United  States  Circuit  Court  for 
the  Eastern  District  of  Louisiana,  to  recover  said 
mesne  profits,  and  effected  service  upon  him  in  that 
district.  Peale,  among  other  defenses,  filed  an  ex- 
ception, in  which  he  denied  the  jurisdiction  of  the 
court.  This  was  overruled  and  judgment  was  ren- 
dered against  him  for  $20,058,  to  be  satisfied  out  of 
the  assets  of  the  bank  in  the  hands  of  Peals  as  trustee. 
The  case  having  been  brought  on  error  to  this  court, 
the  judgment  was  reversed.  The  court,  Mr.  Chief  Jus- 
tice Taney  delivering  its  opinion,  said:  "As  we 
think  this  exception,"  the  one  just  mentioned,  "de- 
cisive against  the  jurisdiction  of  the  Circuit  Court  of 


36^ 

Louisiana,  it  is  unnecessary  to  set  out  the  other  excep- 
tions. We  see  no  ground  upon  which  the  jurisdiction 
of  the  court  can  be  sustained.  The  plaintiff  in  error 
held  the  assets  of  the  bank  as  the  agent  and  receiver 
of  the  court  of  Adams  county  and  subject  to  its  order, 
and  was  not  authorized  to  dispose  of  any  assets  or 
pay  any  debts  due  from  the  bank,  except  by  order  of 
the  court.  He  had  given  bond  for  the  performance  of 
his  duty,  and  would  be  liable  to  an  action  if  he  paid  any 
claim  without  the  authority  of  the  court  from  which  he 
received  his  appointment  and  to  which  he  was  ac- 
countable. The  property  in  legal  contemplation  was 
in  the  custody  of  the  court  of  which  he  was  an  officer, 
and  had  been  placed  there  by  the  laws  of  Mississippi. 
And  while  it  thus  remained  in  the  custody  and  posses- 
sion of  that  court,  awaiting  its  order  and  decision,  no 
other  court  had  a  right  to  interfere  with  it  and  wrest 
it  from  the  hands  of  its  agent  and  thereby  put  it  out 
of  his  power  to  perform  his  duty. ' '  And  the  court  de- 
clared that  the  facts  stated  in  the  petition  showed 
"that  the  Circuit  Court  of  Louisiana  had  no  jurisdic- 
tion" of  the  case. 

That  case  differs  from  the  one  now  under  considera- 
tion only  in  this,  that  it  was  a  suit  to  recover  a  judg- 
ment against  the  trustee  and  receiver  upon  a  demand 
due  from  the  bank  before  his  appointment;  while  the 
present  case  seeks  to  establish  a  demand  against  the 
receiver  for  a  claim  which,  according  to  the  decision 
of  this  court  (Cowdrey  v.  Galveston,  etc.,  Eailroad 
Co.,  supra),  forms  a  part  of  the  charges  and  expenses 
of  executing  that  trust.  Such  charges  are  specially 
subject  to  the  control  and  allowance  of  the  court  which 
is  administering  the  trust  property. 

We  think,  therefore,  that  the  case  just  cited  is  de- 
cisive of  this. 

The  argument  is  much  pressed,  that  by  leaving  all 
question  relating  to  the  liability  of  receivers  in  the 
hands  of  the  court  appointing  them,  persons  having 
claims  against  the  insolvent  corporation,  or  the  re- 
ceiver, will  be  deprived  of  a  trial  by  jury.  This,  it  is 
said,  is  depriving  a  party  of  a  constitutional  right. 


563 

To  support  this  view  the  following  cases  are  cited: 
Palys  V.  Jewett,  New  Jersey  Court  of  Error  and  Ap- 
peals, Am.  Law  Reg.,  Sept.,  1880,  553;  Kinney  v. 
Crocker,  18  Wis.  74;  Allen  v.  Central  Railroad  of 
Iowa,  42  Iowa  683. 

But  those  who  use  this  argument  lose  sight  of  the 
fundamental  principle  that  the  right  of  trial  by  jury, 
considered  as  an  absolute  right,  does  not  extend  to 
cases  of  equity  jurisdiction.  If  it  be  conceded  or 
clearly  shown  that  a  case  belongs  to  this  class,  the  trial 
of  question  involved  in  it  belongs  to  the  court  itself, 
no  matter  what  may  be  its  importance  or  complexity. 

Thus,  upon  a  bill  filed  for  an  injunction  to  restrain 
the  infringement  of  letters-patent,  and  for  an  account 
of  profits  for  past  infringement,  it  is  now  the  con- 
stant practice  of  courts  of  equity  to  try  without  a  jury 
issues  of  fact  relating  to  the  title  of  the  patentee,  in- 
volving questions  of  the  novelty,  utility,  prior  public 
use,  abandonment,  and  assignment  of  the  invention 
patented.  The  jurisdiction  of  a  court  of  equity  to  try 
such  issues  according  to  its  own  course  of  practice  is 
too  well  settled  to  be  shaken.  Rubber  Company  v. 
Goodyear,  9  Wall.  788 ;  Cawood  Patent,  94  U.  S.  '695 ; 
Marsh  v.  Seymour,  97  id.  348. 

So,  in  cases  of  bankruptcy,  many  incidental  ques- 
tions arise  in  the  course  of  administering  the  bank- 
rupt estate,  which  would  ordinarily  be  pure  cases  at 
law,  and  in  respect  of  their  facts  triable  by  jury,  but, 
as  belonging  to  the  bankruptcy  proceedings,  they  be- 
come cases  over  which  the  bankruptcy  court,  which 
acts  as  a  court  of  equity,  exercises  exclusive  control. 
Thus  a  claim  of  debt  or  damages  against  the  bankrupt 
is  investigated  by  chancery  methods.  The  bankruptcy 
court  may,  and  in  cases  peculiarly  requiring  such  a 
course  will,  direct  an  action  or  an  issue  at  law  to  aid 
it  in  arriving  at  a  right  conclusion.  But  this  rests  in 
its  sound  discretion.  True,  if  one  clauns  that  the  as- 
signee has  wrongfully  taken  possession  of  his  prop- 
erty as  property  of  the  bankrupt,  he  is  entitled  to  sue 
him  in  his  private  capacity  as  a  wrong-doer  in  an 
action  at  law  for  its  recovery. 


364 

Very  analogous  to  the  case  of  an  assignee  in  bank- 
ruptcy is  that  of  a  receiver  of  an  insolvent  railroad 
company  or  other  corporation.  Claims  against  the 
company  must  be  presented  in  due  course,  as  the  court 
having  charge  of  the  case  may  direct.  But  if,  by  mis- 
take or  wrongfully,  the  receiver  takes  possession  of 
property  belonging  to  another,  such  person  may  bring 
suit  therefor  against  him  personally  as  a  matter  of 
right;  for  in  such  case  the  receiver  would  be  acting 
ultra  vires.  Parker  v.  Browning,  8  Paige  (N.  Y.)  388; 
Paige  V.  Smith,  99  Mass.  395;  Hills  v.  Parker,  111  id. 
508.  So  far  the  case  seems  plain.  But  if  claims 
arise  against  the  receiver  as  such,  whilst  acting  under 
the  powers  conferred  on  him,  whether  for  labor  per- 
formed, for  supplies  and  materials  furnished,  or  for 
injury  to  persons  or  property,  then  a  question  of  some 
difficulty  arises  as  to  the  proper  mode  of  obtaining 
satisfaction  and  redress.  The  new  and  changed  con- 
dition of  things  which  is  presented  by  the  insolvency 
of  such  a  corporation  as  a  railroad  company  has  ren- 
dered necessary  the  exercise  of  large  and  modified 
forms  of  control  over  its  property  by  the  courts 
charged  with  the  settlement  of  its  affairs  and  the  dis- 
position of  its  assets.  Two  very  different  courses  of 
proceeding  are  presented  for  adoption.  One  is  the 
old  method,  usually  applied  to  banking,  insurance,  and 
manufacturing  companies,  of  shutting  down  and  stop- 
ping by  injunction  all  operations  and  proceedings,  tak- 
ing possession  of  the  property  in  the  condition  it  is 
found  at  the  instant  of  stoppage,  and  selling  it  for 
what  it  will  bring  at  auction.  The  other  is  to  give  the 
receiver  power  to  continue  the  ordinary  operations  of 
the  corporation,  to  run  trains  of  cars,  to  keep  the 
tracks,  bridges,  and  other  property  in  repair,  so  as  to 
save  them  from  destruction,  and  as  soon  as  the  in- 
terest of  all  parties  having  any  title  to  or  claim  upon 
the  corpus  of  the  estate  will  allow,  to  dispose  of  it  to 
the  best  advantage  for  all,  having  due  regard  to  the 
rights  of  those  who  have  priority  of  claim. 

It  is  evident  that  the  first  method  would  often  be 
highly  injurious,  and  result  in  a  total  sacrifice  of  the 


365 

property.  Besides,  the  cessation  of  business  for  a  day- 
would  be  a  public  injury.  A  railroad  is  authorized  to 
be  constructed  more  for  the  public  good  to  be  sul)- 
served,  than  for  jDrivate  gain.  As  a  highway  for  pub- 
lic transportation  it  is  a  matter  of  public  concern,  and 
its  construction  and  management  belong  primarily  to 
the  Commonwealth,  and  are  only  put  into  private 
hands  to  subserve  the  public  convenience  and  economy. 
But  the  public  retains  rights  of  vast  consequence  in 
the  road  and  its  appendages,  with  which  neither  the 
company  nor  any  creditor  or  mortgagee  can  interfere. 
They  take  their  rights  subject  to  the  rights  of  the 
public,  and  must  be  content  to  enjoy  them  in  subordi- 
nation thereto.  It  is,  therefore,  a  matter  of  public 
right  by  which  the  courts,  when  they  take  possession 
of  the  property,  authorize  the  receiver  or  other  offi- 
cer in  whose  charge  it  is  placed  to  carry  on  in  the 
usual  way  those  active  operations  for  which  it  was 
designed  and  constructed,  so  that  the  public  may  not 
suffer  detriment  by  the  non-user  of  the  franchises. 
And  in  most  cases  the  creditors  cannot  complain,  be- 
cause their  interest  as  well  as  that  of  the  public  is  pro- 
moted by  preventing  the  property  from  being  sacrificed 
at  an  untimely  sale,  and  protecting  the  franchise  from 
forfeiture  for  non-user. 

As  a  choice,  then,  of  least  evil,  if  not  of  the  most 
positive  good  (but  generally  of  the  latter  also),  it  has 
come  to  be  settled  law  that  a  court  of  equity  may,  and 
in  most  cases  ought  to,  authorize  its  receiver  of  rail- 
road property  to  keep  it  in  repair,  and  to  manage  and 
use  it  in  the  ordinary  way  until  it  can  be  sold  to  the 
best  advantage  of  all  interested.  The  power  of  the 
court  to  do  this  was  expressly  recognized  in  Wallace  v. 
Loomis,  97  U.  S.  146. 

But  here  arises  a  dilemma.  If  the  receiver  is  to 
be  suable  as  a  private  proprietor  of  the  railroad  would 
be,  or  as  the  company  itself  whilst  carrying  on  the 
business  of  the  railroad  was,  it  would  become  impos- 
sible for  the  court  to  discharge  its  duty  to  preserve 
the  property  and  distribute  its  proceeds  among  those 
entitled  to  it  according  to  their  equities  and  priorities. 


36() 

It  has,  therefore,  been  found  necessary,  and  has  become 
a  common  practice  for  a  court  of  equity,  in  its  decree 
appointing  a  receiver  of  a  railroad  property,  to  pro- 
vide that  he  shall  not  be  liable  to  suit  unless  leave  is 
first  obtained  of  the  court  by  which  he  was  appointed. 

If  the  court  below  had  entertained  jurisdiction  of 
this  suit,  it  would  have  been  an  attempt  on  its  part  to 
adjust  charges  and  expenses  incident  to  the  adminis- 
tration by  the  court  of  another  jurisdiction  of  trust 
property  in  its  possession,  and  to  enforce  the  payment 
of  such  charges  and  expenses  out  of  the  trust  prop- 
erty without  the  leave  of  the  court  which  was  admin- 
istering it,  and  without  consideration  of  the  rights 
and  equities  of  other  claimants  thereto.  It  would 
have  been  an  usurpation  of  the  powers  and  duties 
which  belonged  exclusively  to  another  court,  and  it 
would  have  made  impossible  of  performance  the  duty 
of  that  court  to  distribute  the  trust  assets  to  creditors 
equitably  and  according  to  their  respective  priorities. 

We  therefore  declare  it  as  our  opinion  that  when 
the  court  of  one  state  has  a  railroad  or  other  prop- 
erty in  its  possession  for  administration  as  trust  as- 
sets, and  has  appointed  a  receiver  to  aid  it  in  the 
performance  of  its  duty  by  carrying  on  the  business 
to  which  the  property  is  adapted,  until  such  time  as  it 
can  be  sold  with  due  regard  to  the  rights  of  all  persons 
interested  therein,  a  court  of  another  state  has  not 
jurisdiction,  without  leave  of  the  court  by  which  the 
receiver  was  appointed,  to  entertain  a  suit  against  him 
for  a  cause  of  action  arising  in  the  state  in  which  he 
was  appointed  and  in  which  the  property  in  his  pos- 
session is  situated,  based  on  his  negligence  or  that  of 
his  servants  in  the  performance  of  their  duty  in  re- 
spect of  such  property. 

Judgment  affirmed. 


367 

WANGELIN  V.  GOB, 

50  111.  459. 

(1869.) 

Mr.  Chief  Justice  Breese  delivered  the  opinion  of 
the  court. 

The  important  question  raised  on  this  record  is,  as 
to  the  power  of  a  circuit  judge  to  grant  an  injunction 
on  the  facts  stated  in  the  bill  of  complaint,  and  that 
brings  up  the  question  of  the  refusal  of  the  court  to 
dissolve  the  injunction  on  motion,  and  the  ruling  of 
the  court  in  disallowing  a  demurrer  to  the  bill. 

Appellants  make  the  point,  first,  that  the  motion 
to  dissolve  should  have  been  allowed,  as  the  material 
allegations  of  the  bill  were  disproved  by  the  affidavits 
submitted  by  the  defendants  in  support  of  the  motion. 

We  are  not  advised  of  any  practice  in  our  courts  to 
submit  affidavits  on  a  motion  to  dissolve  an  injunction, 
and  do  not  understand  by  what  proceeding  the  affi- 
davits to  which  reference  is  made  have  become  a  part 
of  the  record  in  this  case.  The  motion  to  dissolve  the 
injunction  operates  in  the  same  way  as  a  demurrer  to 
the  bill,  and  is  based  on  matters  intrinsic,  appearing 
on  the  face  of  the  bill,  hence  no  affidavits  showing  ex- 
traneous matter  could  be  used.  Titus  v.  Mabee,  25  111. 
257. 

When  an  answer  is  filed  denying  the  allegations  of 
the  bill,  it  would  then  be  in  order  to  move  for  a  dis- 
solution of  the  injunction,  as  provided  in  chap.  72,  en- 
titled '^Ne  exeat  and  injunctions,"  sec.  13  of  which 
provides  that  upon  filing  an  answer  it  shall  be  in  order 
at  any  time  to  move  for  the  dissolution  of  an  injunc- 
tion, and  upon  such  motion,  it  is  allowed  to  either 
party  to  introduce  testimony  to  support  the  bill  and 
answer,  and  this  is  substantially  the  English  practice. 
This  motion  is  to  be  decided  by  the  court  upon  the 
weight  of  testimony,  without  being  bound  to  take 
the  answer  as  absolutely  true.    Gross'  Stat.  458. 

The  motion  to  dissolve,  and  the  production  of  affi- 


368 

davits,  were,  therefore,  premature,  and  the  court  did 
right  to  disallow  it. 

The  next  point  made  is,  that  the  demurrer  to  the 
bill  should  have  been  sustained,  and  the  bill  dismissed 
for  want  of  equity  on  its  face. 

The  office  of  a  demurrer  to  a  bill  in  equity  is  to  deny, 
in  form  and  substance,  the  complainant's  right  to  have 
his  case  considered  in  a  court  of  equity,  and  to  admit 
all  the  allegations  that  are  properly  pleaded,  and  when 
it  is  disclosed  on  the  face  of  the  bill  that  a  court  of 
equity  has  no  jurisdiction,  because  the  party  has  an 
adequate  remedy  at  law,  the  bill  is  obnoxious  to  a  de- 
murrer for  want  of  equity,  and  it  will  be  so  adjudged 
on  error  or  appeal.  AYinkler  v.  Winkler  et  al.  40  111. 
179. 

To  determine  if  the  demurrer  was  well  taken,  we 
must  look  at  the  facts  stated  in  the  bill  of  complaint. 

The  most  important  are,  briefly,  these:  That  com- 
plainant Goe  is  a  resident  of  St.  Clair  county,  and  on 
the  ninth  day  of  November,  1868,  one  Henry  C.  Yaeger 
was  in  the  lawful  possession  of  certain  real  estate  in 
the  town  of  Lebanon,  in  that  county,  containing  two 
acres  and  four  rods  of  ground,  ''being  the  tract  of 
land  known  as  the  Wangelin  Mill  tract ; ' '  that  Yaeger 
sold  the  same  to  complainant  for  $14,000,  with  the 
appurtenances,  in  fee  simple,  and  put  complainant 
in  possession;  that  while  so  in  possession  he  made 
valuable  and  lasting  improvements  on  the  premises 
and  put  the  mill  in  good  running  order,  and  was  run- 
ning the  mill,  and  had  in  it  wheat  and  corn  belong- 
ing to  himself  and  his  customers,  to  be  ground  into 
flour  and  meal,  of  the  value  of  $1,000,  and  that  he 
was  operating  the  mill  with  great  profit  to  himself, 
his  customers,  and  to  the  community  generally;  that, 
being  thus  in  possession,  on  the  twenty-fifth  day  of  Jan- 
uary, 1869,  about  twelve  o  'clock  noon  of  that  day,  while 
he  was  absent  at  dinner,  the  defendants,  Wangelin  and 
Heuer,  combining  with  others  unknown,  against  the  will 
of  complainant,  and  with  force  and  arms,  broke  and 
entered  into  possession  of  the  premises  and  with  drawn 
pistols  drove  the  miller  from  the  premises,  and  have 


369 

ever  since,  with  a  guard  of  armed  men,  with  force, 
kept  possession  of  the  mill  by  day  and  by  night,  and 
deprived  compUiinant  of  the  use  of  the  mill,  thereby 
depriving  him  of  large  gains  and  profits ;  that  thereby 
he  has  sutfered  irreparable  injury  and  damages  for 
which  he  has  no  adequate  remedy  at  law,  and  he  charges 
that  neither  of  the  defendants  has  property  subject  to 
execution  at  law.  The  prayer  is,  that  the  defendants, 
and  all  persons  under  them,  be  enjoined  from  inter- 
fering with  complainant  in  the  possession  and  opera- 
tion of  the  mill,  and  that,  on  the  final  hearing,  the  in- 
junction may  be  made  perpetual,  and  for  other  relief. 

It  is  apparent  the  sole  object  of  the  bill  was  for  an 
injunction  to  restrain  defendants  from  doing  what  the 
bill  alleges  they  had  done,  and  if  it  was  to  have  any 
effect  whatever,  it  must  be  made  to  operate  as  a  writ 
of  restitution,  a  writ  which  the  court  could  not  grant, 
under  the  allegations  and  prayer  of  the  bill.  The  deed 
was  done,  and  there  remained  nothing  on  which  the 
writ  of  injunction  could  operate.  An  injunction  is 
understood  to  be  a  preventive  remedy  merely,  and 
cannot  be  so  framed  as  to  command  a  party  to  undo 
what  he  has  done.  The  ver^^  terms  of  the  writ  indicate 
its  purpose,  that  is,  restraint.  It  is  described  as  a 
judicial  process,  by  which  a  party  is  required  to  do  a 
particular  thing,  or  to  refrain  from  doing  a  particular 
thing,  according  to  the  exigency  of  the  writ,  the  most 
common  sort  of  which  operate  as  a  restraint  upon  the 
party  in  the  exercise  of  his  real  or  supi:>osed  rights, 
and  is  called  the  remedial  writ  of  injunction.  The 
other  sort,  requiring  a  party  to  do  a  particular  thing, 
is  sometimes  called  the  judicial  writ,  and  only  issues 
after  a  decree  has  passed,  and  is  in  the  nature  of  an 
execution  to  enforce  it.    2  Story's  Eq.  Jur.,  sec.  861. 

It  is  further  said,  in  the  same  treatise,  that  the  ob- 
ject of  this  process  is  generally  protective  and  pre- 
ventive, rather  than  restorative,  though,  by  no  means 
confined  to  the  former. 

It  is  under  this  last  branch  of  the  definition  appellee 
relies,  to  sustain  this  proceeding.  His  counsel  say,  the 
only  point  properly  presented  by  the  record  is,  whether 


370 

a  court  of  chancery  will  restrain,  by  injunction,  an 
insolvent  person,  who,  by  brute  force,  with  weapons, 
is  molesting  a  party  in  the  peaceable  and  lawful  pos- 
session of  his  property,  until  the  rights  of  the  parties 
can  be  settled  at  law. 

It  is  unfortunate  for  the  appellee,  that  his  bill  of 
complaint  contains  no  allegation  that  proceedings  at 
law  have  been,  or  are  about  to  be,  instituted,  to  try 
the  respective  rights  of  these  parties  to  the  premises, 
nor  is  there  any  allusion  whatever  to  any  such  pro- 
ceedings. It  is  a  naked  bill  for  an  injunction  to  re- 
strain appellants  from  doing  the  acts  which  the  bill 
alleges  they  have  done.  There  is  no  prayer  that  appel- 
lants shall  be  turned  out  of  possession  and  appellee  put 
in.  The  facts  stated  disclose  nothing  more  than  a 
simple  case  of  trespass,  by  a  forcible  entry  and  de- 
tainer, the  remedy  for  which  is  ample  at  law,  and  fully 
adequate.  It  has  often  been  held  by  this  court,  that 
a  party  can  have  no  footing  in  a  court  of  equity  when 
he  has  an  adequate  remedy  at  law.  Winkler  v.  Winkler 
et.  al.,  supra. 

The  point  made  by  appellee  is  disposed  of  by  saying 
that,  in  a  proper  case,  a  court  of  chancery  will  restrain, 
by  injunction,  any  person  who,  by  brute  force,  with 
weapons,  is  molesting  a  party  in  the  peaceable  and 
lawful  possession  of  his  property,  provided  the  rules 
of  law,  in  their  application  to  the  case,  shall  afford 
him  no  adequate  remedy.  But  that  is  not  the  case. 
There  is  no  charge  in  the  bill  that  appellants  are 
molesting  appellee  in  the  enjoyment  of  his  property. 
The  acts  charged  are  past  and  done,  and  the  prayer  is 
that  they  be  restrained  from  doing  them.  As  well 
might  A,  whose  dwelling  house  has  been  entered  by 
a  trespasser  during  the  temporary  absence  of  the 
family,  apply  for  an  injunction  to  restrain  him  from 
doing  such  an  unlawful  act.  We  think  the  books  will 
be  searched  in  vain  for  a  precedent  of  that  character. 
It  is  urged  by  appellee,  where  a  trespass  is  like  to 
be  repeated,  and  the  party  is  insolvent,  or  adequate 
damages  cannot  be  estimated  in  money,  an  injunction 
is  proper,  and  in  this  connection  says  that  injunctions 


371 

to  prevent  forcible  dispositions  of  possession  were 
common  at  one  time  in  England,  referring  to  2  Story's 
Eq.  Jur.,  sees.  869-70.  By  turning  to  sec.  869,  it  will  be 
seen  that  the  author  is  treating  of  cases  wholly  differ- 
ent from  this.  He  says,  ''in  the  early  course  of  chan- 
cery proceedings,  injunctions  to  quiet  the  possession 
of  the  parties  before  the  hearing  were  indiscriminately 
granted  to  either  party,  plaintiff  or  defendant,  in  cases 
where  corporeal  hereditaments  were  the  subject  of  the 
suit,  the  object  of  them  being  to  prevent  a  forcible 
change  of  possession  by  either  party,  pending  the  liti- 
gation." In  the  next  section,  870,  the  author  says, 
"the  practice  of  granting  injunctions  of  this  sort  has 
become  obsolete  in  England,  if  not  altogether,  at  least 
in  so  great  a  degree  that  there  are  few  instances  of 
it  in  modern  times.  But  injunctions  in  the  nature  of 
an  interdict,  unde  vi,  of  the  Roman  law,  to  restore  a 
possession  from  which  the  party  has  been  forcibly 
ejected,  are,  under  the  name  of  possessory  bills,  said 
to  be  still  conmion  in  Ireland." 

The  proceeding  before  us  is  of  this  character,  and 
is  in  the  nature  of  an  interdict  wide  vi,  but  there  is 
no  precedent  for  it  in  the  American  or  English  courts, 
and,  we  may  add,  no  necessity  for  it.  Again,  counsel 
for  appellee  say  that  courts  of  equity  interfere  in  cases 
of  trespass,  to  prevent  irreparable  mischiefs,  or  to 
suppress  multiplicity  of  suits  and  oppressive  litigation, 
in  cases  of  cutting  timber,  digging  in  mines,  coal  beds, 
quarries,  and  the  like.  That  is  all  true,  and  the  re- 
straining power  of  chancery  is  often  successfully  in- 
voked in  such  cases,  but  no  case  can  be  shown  where 
the  trespasser  was  required  to  put  back  into  the  quarry 
or  mine,  or  coal  bed,  the  material  he  had  taken  out. 

The  counsel  further  say  that  mill  operators  are  pro- 
tected from  molestation  in  their  business,  for  the  same 
reason  that  miners  are  protected,  because  it  is  impos- 
sible to  estimate  their  losses  and  profits,  and  irre- 
parable injury  is  done  to  the  operator  and  to  the  pub- 
lic, and  Hilliard  on  Injunctions,  448,  is  referred  to. 
The  author  is  there  treating  of  the  rights  of  mill  own- 
ers on  the  same  stream  of  water,  and  the  power  of  a 


372 

court  of  chancery  to  enjoin  a  nuisance, — cases  quite 
different  from  the  one  we  are  considering. 

Eeference  is  also  made  by  appellee  to  a  case  decided 
by  this  court,  in  support  of  the  injunction.  It  is  the 
case  of  Brunnenmeyer  et  al.  v.  Buhre  et  al.,  32  111.  183. 
That  was  a  case  in  which  a  difficulty  had  arisen  in  a 
religious  society  of  which  Brunnenmeyer  was  one  of 
the  trustees,  and  Buhre  the  pastor.  This  trustee,  with 
one  of  his  co-trustees,  Fickensher,  locked  up  the  church 
building,  to  the  exclusion  of  the  pastor  and  those  mem- 
bers of  the  church  who  desired  to  retain  him  in  that 
position.  There  was,  subsequently,  an  election  of  trus- 
tees, by  a  majority  of  the  members,  and  the  pastor 
was  retained  in  their  service. 

The  church  being  locked  up  by  Brunnenmeyer,  the 
pastor,  Bulire,  with  other  members  of  the  church,  and 
on  behalf  of  the  church,  exhibited  their  bill  in  chan- 
cery, against  Brunnenmeyer  and  others,  for  an  injunc- 
tion, setting  out  their  title  to  the  church  property,  and 
praying  for  an  injunction  to  restrain  the  defendants 
from  interfering  or  in  anywise  intermeddling  with 
the  complainants  and  members  of  the  church  in  con- 
vening and  worshipping  according  to  its  usages  and 
customs,  as  they  had  theretofore  done. 

The  defendants  admitted  the  charge  of  locking  up 
the  church  to  protect  the  property  in  it,  alleging  it  was 
done  upon  proper  authority,  setting  out  the  facts.  The 
court,  on  final  hearing,  made  the  injunction  perpetual, 
and  on  appeal  to  this  court  the  decree  was  affirmed,  the 
court  holding  the  church  was  trust  property,  and  that 
the  defendants  were  not  warranted  in  closing  it  against 
the  complainants,  thereby  depriving  them  of  the  use  of 
it  for  purposes  of  worship.  It  was  urged  in  that  case 
that  the  act  complained  of  was  already  performed,  and 
there  was  nothing  to  restrain,  but  the  court  said  it  was 
not  like  a  simple  act  of  trespass — it  was  of  a  continu- 
ing nature,  and  designed  to  deprive  complainants  of 
their  rights  in  the  future  as  well  as  in  the  past,  and 
to  prevent  this  continuing  injury  and  deprivation  of 
right,  the  court  had  the  authority  to  interpose  by  its 
restraining  power,  and  to  grant  preventive  relief,  to 


373 

the  same  extent  that  it  could  to  prevent  a  single  in- 
jurious act. 

It  is  apparent  in  this  case  that  the  rules  of  law  fur- 
nished no  adequate  remedy  for  the  injury  of  which 
complaint  was  made,  as  no  action  of  forcible  entry  and 
detainer  would  lie,  while  in  the  case  at  bar,  one  of  the 
most  simple  remedies  known  to  the  law,  and  fully  ade- 
quate, was  open  to  the  appellee. 

The  case  of  Goodnough  v.  Sheppard,  28  111.  81,  cited 
by  appellee,  was  a  case  of  the  ordinary  exercise  of  the 
powers  of  the  equity  court  to  restrain  an  officer  from 
disturbing  a  man  in  possession,  who  was  not  a  party 
to  the  judgment  or  named  in  the  execution,  and  who 
did  not  claim  through  any  of  the  litigating  parties. 
The  ground  of  that  decision  is  that  a  person  in  the 
quiet  possession  of  real  estate  as  owner,  may  have  an 
injunction  to  restrain  others  from  dispossessing  him 
by  means  of  process  growing  out  of  litigation  to  which 
he  was  not  a  party,  a  case  of  very  frequent  occurrence. 
-  The  case  of  Webber  v.  Gage,  39  N.  H.  182,  is  re- 
ferred to,  as  sustaining  this  injunction.  That  was  a 
case  where  the  complainant  had  enjoyed  an  easement 
to  his  saw  mill  for  forty  years,  and  the  defendants 
were  restrained  from  obstructing  it  or  closing  it  up. 

Among  the  numerous  cases  cited  by  appellee  we  do 
not  find  one  where  an  injunction  was  awarded  after 
the  act  was  done,  or  to  put  a  party  in  possession  of 
real  estate  on  a  bill  to  restrain  tort-feasors  from  enter- 
ing upon  the  estate.  If,  on  a  bill  for  such  purpose, 
it  should  be  found  the  wrong-doers  are  in  actual  pos- 
session, they  would  not  be  held  as  in  contempt  in  main- 
taining such  possession  by  force.  The  case  of  The 
People  V.  Simonson,  10  Mich.  335,  is  on  this  point.  The 
proceedings  were  for  a  contempt.  The  complainant, 
Van  Ness,  was  put  in  actual  possession  of  certain 
premises  under  a  lease  from  Wapler,  who  had  ob- 
tained a  writ  of  possession  against  Simonson.  On  the 
same  day  he  was  put  in  possession,  he  was  put  out 
with  all  his  effects  by  Simonson.  The  injunction  was 
served  a  few  days  after,  and  the  next  day  Van  Ness 
undertook  to  enter  the  house,  but  was  prevented  by 


374 

Simonson,  who,  with  the  other  respondents,  continued 
to  keep  him  out.  It  was  for  this  the  attachment  issued 
against  the  respondents,  Simonson  and  others,  to  an- 
swer for  a  contempt  in  disobeying  the  injunction. 

The  court  say,  when  the  bill  was  filed,  and  ever  since, 
Simonson  and  the  other  respondents  under  him  have 
had  the  actual  possession  of  the  premises,  and  their 
acts,  during  this  period,  have  consisted  only  in  en- 
deavor to  maintain  it.  This  being  the  case,  the  court 
say  the  injunction  has  not  been  violated,  for  it  was 
issued  to  preserve  an  actual  possesion  against  molesta- 
tion, and  not  to  oust  a  possessor  who  may  have  been 
a  tortious  holder.  No  court  can,  by  a  preliminary 
ex  parte  order  or  process,  turn  even  a  wrong-doer  out 
of  possession,  and  we  cannot  presume  that  the  writ 
in  the  case  before  us  was  designed  to  have  any  such 
operation. 

In  these  views  we  fully  accord,  and  as  it  is  a  case 
in  many  respects  identical  with  the  one  before  us,  we 
must  hold,  as  in  that  case,  that  as  the  injunction  was 
allowed  in  this  case,  the  wrong-doers  being  in  posses- 
sion of  the  premises  when  the  bill  was  filed,  they  could 
not  be  turned  out  of  possession  by  such  a  writ. 

Even  in  cases  of  nuisance,  equity  will  not  exercise 
jurisdiction  to  remove  it,  until  it  is  found  to  be  such 
by  a  jury,  either  in  an  action  at  law  or  on  an  issue 
out  of  chancery,  and  with  an  erection  which,  if  made, 
might  be  a  nuisance,  a  court  of  equity  would  not  inter- 
fere, but  would  leave  the  injured  party  to  Ms  action  on 
the  case.    Dunning  v.  The  City  of  Aurora,  40  111.  481. 

This  bill  is  brought,  evidently,  to  recover  possession 
of  the  mill,  and  is  what  may  be  called  an  ejectment 
bill,  and  such  a  bill  is  demurrable,  the  redress  being 
at  law,  either  by  action  of  ejectment,  trespass  quare 
clausum  f regit,  or  by  the  more  summary  mode,  by  the 
action  for  forcible  entry  and  detainer.  Story's  Eq.  PL, 
sec.  476. 

A  case  similar,  in  some  respects,  to  this,  as  the  bill 
alleged  and  unlawful  and  violent  entry  into  the  prem- 
ises, withholding  their  use  from  the  complainants,  and 
depriving  them  of  their  support  and  maintenance  from 


375 

the  land,  and  that  the  defendant  was  insolvent,  and 
praj'ing  that  the  defendant  be  enjoined  and  compelled 
to  surrender  the  premises,  and  that  a  receiver  be  ap- 
pointed, is  reported  in  14  Maryland,  376,  Pfeltz  et  al. 
V.  Pfeltz  et  al.  There  it  was  held  the  facts  charged 
in  the  bill  did  not  show  defendant  was  committing  irre- 
parable damage  to  the  property,  to  prevent  which  an 
injunction  was  necessary.  That  court  considered  the 
object  of  the  proceeding  was  to  obtain  possession  of 
the  land,  and  presented  a  case  proper  for  redress  at 
law,  and  reversed  the  judgment  of  the  Circuit  Court 
granting  an  injunction. 

The  only  material  difference  between  that  case  and 
this  is  that  complainaint  in  his  bill  charges  that  by 
the  forcible  entry  and  taking  possession  of  the  mill 
he  has  been  deprived  of  the  use  of  the  mill,  and  of 
large  gains  and  profits  therefrom,  whereby  he  has  suf- 
fered irreparable  injury  and  damages  for  which  he 
has  no  adequate  remedy  at  law. 

No  damage  to  the  premises  is  alleged,  nor  is  there 
any  statement  in  the  bill  from  which  such  an  inference 
can  be  drawn,  and  it  is  usually  for  such  irreparable 
damages  an  injunction  can  be  allowed,  and  then  only 
for  purposes  of  prevention.  The  injunction  is  a  pre- 
ventive remedy.  It  comes  between  the  complainant 
and  the  injury  he  fears  or  seeks  to  avoid.  If  the 
injury  be  already  done,  the  writ  can  have  no  operation, 
for  it  cannot  be  applied  correctively,  so  as  to  remove  it. 
Att'y  Gen.  v.  New  J.  E.  R.  &  Trans.  Co.,  2  Green's  Ch. 
R.  136. 

We  may  add  to  this,  that  it  is  at  the  same  time  a 
fetter  and  a  shield,  not  a  weapon  to  pierce. 

The  record  in  this  case  further  shows  that  the  appel- 
lants, refusing  to  surrender  possession  of  the  mill,  on 
the  service  of  the  writ  of  injunction,  an  attachment 
for  the  contempt  was  issued  against  them,  returnable 
before  the  judge  at  chambers,  which  coming  to  the 
knowledge  of  the  defendants,  they  surrendered  the  pos- 
session to  the  sheriff,  and  no  further  proceedings  were 
had  on  the  attachment. 

Under  these  circumstances,  and  as  the  injunction 


376 

Was  wrongfully  sued  out,  and  as,  by  it,  or  through 
the  instrumentality  of  proceedings  under  it,  the  de- 
fendants have  been  deprived  of  the  possession  of  the 
mill,  and  which,  for  aught  we  know,  may  be  their  right- 
ful property,  we  deem  it  but  just  that  a  writ  of  resti- 
tution should  issue  to  restore  to  them  the  possession 
of  the  premises.  In  the  ordinary  action  of  ejectment, 
when,  upon  the  recovery  by  the  plaintiff,  a  writ  of  pos- 
session issue  in  his  favor,  upon  a  new  trial  and  re- 
covery by  the  defendant,  a  writ  of  restitution  issues 
in  his  behalf,  so  in  this  case,  appellants  having  been 
deprived  of  the  possession  by  the  action  of  the  Circuit 
Court,  and  which  we  have  considered  as  unauthorized, 
it  is  but  just  and  equitable  they  should  be  restored 
to  the  position  they  occupied  at  the  time  these  pro- 
ceedings were  commenced,  and  complainant  remitted 
to  his  action  of  ejectment,  or  forcible  entry  and  de- 
tainer, to  recover  the  possession.  He  must  be  the  actor 
in  such  a  proceeding,  and  not  appellants. 

Upon  the  point  made  by  appellants,  that  the  court 
proceeded  to  a  decree  on  overruling  the  demurrer, 
there  was  no  irregularity  in  that,  as  the  record  shows 
the  defendants  elected  to  abide  by  the  demurrer,  and 
if  they  had  not  so  elected,  it  was  not  necessary  the 
court  should  have  ruled  them  to  answer,  but  could 
proceed  at  once  to  a  decree.  Roach  v.  Chapin,  27  111. 
194.  The  error  is  in  the  decree  itself,  having  been 
rendered  on  a  bill  void  of  equity. 

The  decree  must  be  reversed  and  the  cause  re- 
manded, with  directions  to  the  Circuit  Court  to  award 
to  appellants  a  writ  of  restitution  of  the  premises  in 
the  bill  described,  if  the  same  should  be  moved  for 

by  them. 

Decree  reversed. 


377 

ST.  LOUIS,  A.  &  S.  R.  CO.  ET  AL.  v.  HAMILTON, 
158  111.  366. 
(1895.) 

Craig,  C.  J.     The  first  question  presented  by  the 
record  is  whether  the  court  erred  in  overruling  the  de- 
murrer of  Joseph  Dickson,  receiver,  to  the  declaration. 
It  will  be  observed  that  Joseph  Dickson  was  sued,  not 
as  an  individual,  but  as  a  receiver.     It  was  thus  im- 
pliedly admitted  in  the  declaration  that  Joseph  Dick- 
son had  been  appointed  receiver  of  St.  Louis,  Alton  & 
Springfield  Railroad  Company  by  some  court  in  com- 
petent jurisdiction;  and,  having  been  thus  appointed, 
he  was  an  officer  of  the  court,  and  his  possession  of 
the  land  sought  to  be  recovered  was  the  possession  of 
the  court.     The  law  is  well  settled,  where  a  receiver 
has  been  appointed  by  a  court  of  competent  jurisdic- 
tion, and  has  taken  possession  of  property  in  his  capa- 
city of  receiver,  he  has  the  right  to  hold  such  property, 
and  dispose  of  it  under  the  direction  of  the  court ;  and 
any   unauthorized   interference   therewith,   by   taking- 
possession  of  the  property,  or.  instituting  legal  pro- 
ceedings to  obtain  possession,  without  the  sanction  of 
the  court  appointing  such  receiver,  is  a  direct  con- 
tempt of  court,  and  punishable  as  such.     Richards  v. 
People,  81  111.  554.    Here  the  property  was  in  the  pos- 
session of  Dickson  as  receiver,  and,  if  the  plaintiff  de- 
sired to  contest  his  right  to  hold  the  possession  of  the 
property,  the  law  required  her  to  go  to  the  court  who 
appointed  the  receiver,  and  obtain  permission  to  bring 
an  action  for  that  purpose.     Beach,  Rec.  §§  655,  726; 
Hight,  Rec.  §§  254,  395a,  139.    In  the  last  section  this 
author   says:     "Thus,   the   court   will  not   permit   a 
claimant  of  real  estate  which  is  in  possession  of  its 
receiver  to  bring  an  action  of  ejectment  without  first 
obtaining   leave   for    that   purpose.      And   ordinarly, 
when  real  estate  is  in  the  actual  possession  of  a  re- 
ceiver, an  action  of  ejectment  will  not  be  maintained 


378 

against  him  in  another  court,  but  the  claimant  will  be 
permitted  to  pursue  his  remedy  against  the  receiver 
in  the  action  in  which  he  was  appointed."  In  section 
254,  the  author  says:  ''And  it  is  necessary  to  aver 
in  the  *  *  *  declaration  against  a  receiver  that 
leave  of  court  has  been  granted  to  bring  the  action, 
and  the  absence  of  such  averment  is  fatal  on  de- 
murrer." See,  also,  Keen  v.  Breckinridge,  96  Ind. 
69.  The  question  of  right  to  bring  an  action  against 
a  receiver  without  first  obtaining  leave  arose  in  Mul- 
cahey  v.  Strauss,  151  111.  70,  37  N.  E.  702;  and,  after 
a  review  of  the  authorities,  it  was  held :  While  it  was 
a  contempt  of  court  to  bring  suit  against  a  receiver 
without  leave  of  court,  and  while  the  appointing  court 
may  protect  its  officer  by  attachment,  or  by  an  in- 
junction stopping  the  suit,  the  failure  to  obtain  such 
leave  is  no  bar  to  the  jurisdiction  of  the  court  in  which 
the  suit  is  brought,  in  all  cases  where  there  is  no  con- 
tempt to  interfere  with  the  actual  possession  of  the 
property  held  by  the  receiver.  Here  the  action  was 
brought  for  the  purpose  of  obtaining  possession  of  the 
property  held  by  the  receiver,  and,  under  the  rule  an- 
nounced, we  think  the  plaintiff  should  have  averred 
in  her  declaration  that  she  had  obtained  leave  of  the 
court  in  which  the  receiver  was  appointed  to  bring 
the  action,  and  the  court  erred  in  overruling  the  de- 
murrer to  the  declaration. 

There  is  another  ground  upon  which  the  judgment 
must  be  reversed:  As  has  been  seen,  the  defendant, 
by  the  second  plea,  presented  an  issue  as  to  its  posses- 
sion of  the  land  when  the  action  was  brought.  Under 
this  issue  it  devolved  on  plaintiff  to  prove  that  the 
defendant  was  in  the  possession  of  the  premises,  but 
no  evidence  whatever  was  introduced  to  establish  that 
fact;  and,  as  plaintiff  was  not  entitled  to  judgment 
against  defendant  unless  it  was  in  possession,  the 
court  erred  in  rendering  the  judgment  against  the  de- 
fendant the  St.  Louis,  Alton  &  Springfield  Eailroad 
Company.  For  the  errors  indicated  the  judgment  will 
be  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 


INDEX. 

PAGE 

Accounting 

before  master  in  federal  courts 201 

procedure  upon  order  of  reference  to  state  account 62 

Address  of  bill  16 

Admissions    by   pleadings 71 

Affidavit 

to    answer    127 

that  plea  or   demurrer  not  filed   for   delay   in   federal 

court    183 

depositions    and    documents    previously   used    in    court 

may  be  used  before  the  master  in  Cook  County...  170 
depositions  and  documents  already  used  in  court  may 

be  used  in  federal  court 201 

as  evidence   79 

Affirmative   relief 29,  45 

Allegations 

ambiguous    24 

bill   20 

whether  in  bill  or  in  answer,  must  be  proved   unless 

expressly  admitted  by  the  opponent's  pleading 44 

to  do  equity 23 

in  cases  of  fraud  or  usury 23 

Amendment   52 

must  be  upon  leave  of  court 57 

of  answer  in  federal  court 192 

by  supplemental   bill 53 

of  bill,  federal 182 

continuance  upon    54 

Amendment 

filing    a   material    amendment,    sets    aside    all    default 

orders    58 

Illinois   statutes    on 54 

in  Illinois  to  conform  to  proofs  already  taken 55 

Answer  43 

form  of  126 

oath  to    46 

where  oath   waived 46,  47 

must   state   defense 43,  45 

must    be    full 43 

testing  legal  sufficiency  of 47 

Illinois    statute    requires    full    answer,    even    if    oath 

waived  18 

in  federal  court 185 

Federal  rule  does  not  require  full  answer 18 

(379) 


380 

Answer — Continued.  page 

to  amended  bill  in  federal  court 188 

how  verified  in  federal  practice 192 

separate,  cost  of,  in  federal  court 193 

accompanying  plea  in  certain  cases 40 

to  cross-bill  in  federal  practice 198 

effect  of  where  oath  not  waived 46 

may  suggest  want  of  parties,  if  names  are  given 46 

proceedings,    if    insuflScient 44 

in  Illinois,  if  notice  of  answer  given,  replication  must 

be  filed  in  four  days 52 

amendment  to  conform  to  proof 56 

admissions   in,   effect   of 47 

upon  amendment  bringing  in  new  issue 57 

upon  amendment  to  conform  to  proofs 56 

need  not  answer  immaterial,  irrelevant,  or  scandalous 

allegations    44 

affirmative   relief   upon 45 

acts  held  to  waive  filing  of  answer 49 

Appearance    34 

rule  as  to  in  Cook  County 159 

when  and  how  entered,  federal 178 

Bill 

original   13 

parts    16 

form  of  stating  part 122 

formal  parts  of 121 

caption    16 

address    16 

introductory   part    16 

form  of  introduction  in  federal  courts 179 

confederating   part    16 

form  of  confederating  part 122 

charging  part   17 

charging  part  of 122 

jurisdiction    clause    17 

form  of  jurisdictional   clause 122 

interrogatory  part  17 

form   of  interrogating  part  of 122 

prayer    for    relief 8 

praying  for  relief 14 

form  of  prayer  for  relief 123 

prayer   for   process 19 

form  of  prayer  for  process 123 

parts  may  be  omitted 20 

clauses   which    may    be    omitted    from    bill    in    federal 

courts    179 

federal,  signing    181 

framed  upon  alternative  theories 23 

of    interpleader 13,  24 


381 

Bill — Continued.  page 

of  certiorari 13 

of  discovery    13 

not  praying  for  relief 14 

to  examine  witnesses  de  bene  esse 14 

to    perpetuate    testimony 14 

not   original 13,    26,     33 

supplemental     14 

cross-bills    14 

of  revivor   14,     26 

to    suspend    decree 14 

to   impeach   decree 14 

to  carry  decree  into  effect 14 

of   review    14,     26 

annexing  exhibits   24 

by  stockholder,  in  federal  court 205 

Bonds,  spreading  same  of  becobd  upon  motion  in  cook  county..  166 

Brief  of  lawyer  suggesting  findings  for  master's  report.  ...  63 

Caption    of   bill 16 

Case  law,  what  is 8 

Certificate 

of  evidence  by  Judge 129 

of   sale,   form 149 

Charging  clause  of  bill 17 

Citizenship  of  parties,  form  of  introduction 121 

Commissioners,    special 67 

Common  law,  what  is 8 

Conclusions,   legal    22 

Confederating  clause  of  bill 16 

Confession 

by  pleadings 71 

by  default   71 

Continuance 

affidavit  for,  upon  motion  must  show  diligence 57 

upon  amendment 54 

Cook  County,  chancery  rules 159 

Costs   101 

security    for    102 

on  frivolous  cause  in  federal  court 202 

form  of  master's  certificate  of 135 

appearance  fees   167 

federal  181 

Court,  federal,  always  open 173 

Cross-bill    14,  28 

form  of  31 

in  Illinois 30 

in   foreclosure   suits 30 


382 

Cboss-blll — Continued.  page 

answer  to  in  federal  practice 198 

defenses   to    31 

Decbee    92,  95 

final  and   interlocutory 93 

time    to    prepare 22 

mandate  of   court 21 

pro    confesso 95 

pro  confesso,  how  set  aside 96 

federal,   pro   confesso 178 

disposing  of  objections  to  master's  report 64 

in    foreclosure 143 

of  foreclosure  in  federal  court 205 

place  of  selling  real  estate  in  Cook  county 165 

changing  final  decree  as  to  alimony  or  custody  of  child- 

dren  in  Cook  county 165 

corrections  of  in  federal  court 203 

dismissing  bill   100 

lien  of  99 

enforcement  of   98 

enforcement  of,  federal  court 175 

Deed,  master's   151 

Default 

for   want   of   appearance    or   pleading,   set   aside   by   a 

material  amendment  filed    58 

court  rule  as  to  in  Cook  county 159 

cases   in  Cook  county 164 

federal     178 

Defenses 

to  bills    35 

in  equity,  chart 50 

Demurrer  35 

form    of    124 

in  federal  court 184 

general    36 

special    36 

"speaking"     35 

purpose  of   38 

grounds  of    37,  38 

as  to  character  or  want  of  parties 37 

to  jurisdiction    37 

to  form  of  bill 38 

as  to  substantial  matters  of  bill 38 

ore  tenus    36 

effect  of  sustaining  36 

effect   of   overruling 36 

acts  held  to  waive  a  demurrer  on  file 36 

failure  to  set  down  for  argument  in  federal  court 185 

aflSdavit  of  non-delay  in  federal  courts 37 


383 


PAGE 

Deposition 

nature  of   79 

mode  of  taking 81 

verification  of  80 

Determination 

of  facts  21 

of    law    21 

DiSCLAIMEK      51 

form  of  128 

Discovery  in  answer  not  conclusive 44 

Dismissal  of   bill 100 

Divorce  and  default  cases  in  cook  county 164 

Docketing  cause  in  federal  court 177 

Duces  tecum  form  of  master's  subpoena 132 

Equity  courts,  origin 7 

Equity  law,  what  is 8 

Evidence 70 

mode  of  taking   72 

deposition  79 

when   oral    83 

oral  evidence  must  be  received  on  trial  in  Illinois 59 

testimony,  how  taken  in  federal  court 194 

nature  of  before  master 78 

form  of  master's  notice  to  take  evidence 132 

in  master's  office  in  Chicago 82 

in  cases  referred  to  master,  all  evidence  must  be  heard 

by   master    83 

verification  of  testimony  before  master 80 

subscribing  to  testimony  before  master 78 

rules  to  close  in  master's  office 82 

nature  of  hearing  in  master  office 86 

proof    of    exhibits,    deeds    and    writings    viva   voce    on 

hearing  for  decree,  after  hearing  before  master....  85 

preserving  in   record 73 

admissions    by    pleadings 70 

confession    by   default 71 

stipulation    71 

in  Illinois,  preserving  in  record 74 

form  of  in  the  record 77 

judge's  certificate  of 77,  129 

master's    report   of 78 

master's  certificate  of 135 

form  of  master's  report  of 134 

judge's   certificate   of 77 

recital  of  finding  in  decree 74 

documents     78,  79 

production  of  books  and  papers  before  master 61 


384 

Evidence — Continued.  page 

discretion  of  master  as  to  what  books  and  writings  to 

be    produced 61 

production  of  books  and  writings 87 

affidavit  upon  motion  to  produce  books  and  writings. . .  62 
master    has    power    to    receive    but    not    to    surrender 

exhibits  62 

newly  discovered  bill  of  review 28 

prima   facie,   in   foreclosure   suits 138 

abstract  of  91 

abstract  of  in  Cook  county 165 

proof  of  records  of  corporations 87 

proof  of  records  of  court 87 

proof  of  statutes   87 

affidavits   79 

oral  examination  instead  of  affidavits  in  Illinois 80 

de  bene  esse  federal  court 198 

objections   and    rulings    upon 75 

incompetent  must  be  objected  to 77 

objections  to  in  Chicago,  time  of 86 

objection  that  same  is  not  in  issue 57 

tho  ruled  out  may  appear  in  the  record 73,  77 

in  federal  court,  discretion  of  master  to  admit 61 

Examinees   70 

Exception 

to   answer    48 

for  impertinence  and  scandal 25 

for  scandal  and  impertinence  in  federal  court 181 

federal  193 

for  insufficiency,  federal 192 

to  master's  report  64 

to  master's  report,  form  of 142 

setting  for  argument  in  federal  court 193 

Exhibits,  annexing  to  bill 24 

Facts,  in  chanceby  cause 21 

Fees 

form  of  master's  certificate  of 135 

form  of  order  directing  payment  of  master's  fees 137 

Findings 

of  fact  21 

of  law   21 

fobeclosure,  plan  of  master's  preparation  for  report 137 

Form    121 

bill    121 

address  of  bill 121 

introduction    to    bill 121 

of  introduction,  as  to  infant 121 

of  introduction  to  bill,  as  to  corporation 121 

stating  part  of  bill 122 


385 

Form — Continued.  page 

confederating  part  of  bill 122 

charging   part   of   bill 122 

jurisdictional  clause  of  bill 122 

interrogating  part  of  bill 122 

prayer  of   bill   for   relief 123 

prayer  for  process  in  bill 123 

prayer   for   injunction 124 

of  subpoena  to  answer  bill  in  federal  court 123 

jurisdiction,  interrogatory,  relief  and  process  clauses. .  123 

summons  124 

demurrer    124 

plea    125 

answer    126 

replication     129 

disclaimer    128 

objections  to  master's  report 65 

Fraud,  allegation  of  specific  facts 23 

Frauds 

statute  of,  as  ground  of  demurrer 38 

statute  of,  as  ground  of  plea 42 

Guardian  ad  litem  in  federal  court 203 

Hearing 

in  master's  office,  nature  of 86 

for   decree   in   court 91 

in   Illinois   upon   bill    and   answer    for   want   of   filing 
replication  within  four  days  after  notice  of  answer 

filed    52 

setting  cause  for  as  to  sufficiency  of  plea 40 

setting  cause  for  hearing  upon  bill  and  answer 47 

upon  bill  and  answer,  effect  of  answer 47 

Infant 

should  be  named  as  such  in  prayer  for  process 20 

form  of  introduction  to  bill  as  to 121 

Information    13 

Injunction    103 

right   to    104 

form   of   prayer   for 124 

in  prayer  for  process 19 

in    prayer    for    relief 19 

federal   190 

on  appeal   in  federal  court 205 

dissolution  of   105 

Impertinence    ' 25 

Interest,  mode  of  calcltlation  in  Illinois 139 

Interpreter,  oath  of  91 

Introductory  part  of  bill 16 

Interrogatory  part  of  bill 17 


386 

Intebbogatoeies  page 

in  federal  courts 186 

last  interrogatory  in  federal  practice 198 

further,  upon  coming  in  of  answer 44 

Judge-made   laws,   what  aee 8 

jueisdiction 

equity    10 

clause  of  bill 17 

demurrer   to    37 

plea  to    41 

Laches    23 

as  ground  of  demurrer 38 

as  ground  of  plea 42 

Law 

nature  of   7 

conclusions  or  findings  of 21 

Legal  conclusions,  in  fedebal  coubts  legal  effect  of  instbu- 

ments  to  be  pleaded 181 

Limitation  statute 

as   ground   of   demurrer 38 

as  ground  of  plea 38,  42 

when  suit  begins  as  to 13 

Lis  Pendens,  notice  of,  when  begins 13 

Masteb  in  chanceby 58 

Masteb 

duties  of  58 

duties  and  powers  in  federal  courts 60 

appointment  of  in  federal  court 202 

duty  and  power  in  federal  practice 200 

special  master    67 

rules  governing   168 

acts  only  upon  order  of  reference 59 

proceedings  upon  reference  in  federal  court 199 

procedure  upon  reference  to  state  account 62 

what  cases  must  be  referred  to 59 

form  of  order  of  reference 130 

form  of  order  of  reference  to  state  account 131 

form  of  order  of  reference  as  to  alimony 132 

notice  of  hearings  in  Chicago 83 

form  of  notice  to  take  testimony 132 

form  of  subpoena  duces  tecum 132 

in    Cook   county   may   use   affidavits,    depositions,    etc., 

already  used  in  court 170 

suggestions  or  requests  for  master's  findings 63 

report  of    63 

report,  what  to  contain 66 

findings  in  report,  effect  of 66 

report   of   evidence 78 

verification   of  testimony  before 80 


387 

Master — Continued.  page 

evidence  in  master's  office  in  Ctiicago 82 

form  of  report 133 

report,   in   federal   court 200 

return  and  entry  of  report  of,  in  federal  court 202 

form  of  notice  of  report  drafted 141 

objections  to  report  of 64 

form  of  objections  to  report  of 65 

exceptions  to  report  of 64 

form  of  exceptions  to  report 142 

preparation  of  foreclosure  report 137 

preparation  for  report  in  building  and  loan  association 

foreclosure   139 

schedule  of  information  for  foreclosure  sale 145 

report  of  sale  and  distribution 146 

form  of  deed  of  sale 151 

form  of  certificate  of  sale 149 

form  of  report  of  partition  sale 154 

form  of  report  in  partition  suit 152 

report  of  distribution  in  partition  suit 156 

Mesne  peocess,   federal 175 

Motions    99 

of  course.  Cook  county  rules 159 

federal,  not  of  course 175 

federal,   entry   in  order  book 174 

federal,  grantable  by  clerk 174 

MXTLTIFARIOUS     24 

as  ground  of  demurrer 38 

Multiplicity  of  suits 24 

Ne   exeat    19,  110 

Notice 

form  of  master's,  to  take  evidence 132 

form  of  notice  of  report  drafted 141 

memorandum  of  time,  place,  etc.,  of  foreclosure  sale...  145 

of  receiver's  reports  in  Cook  county 166 

Oath 

of  witness  in  Illinois 90 

of  interpreter   91 

Objections 

and   rulings  upon  evidence 75 

to  incompetent  evidence  must  be  made 77 

to  evidence  in  Chicago 85 

should  be  ruled  upon 76 

to   master's    report 64 

to  master's  report,  character  of 66 

to  master's  report,  form  of 65 

before  master  in  federal  courts 60 

Orders  92 

at   chambers,   federal 173 

restraining  104 


388 

Obdek  page 

of    reference    to    master,    form 130 

confirming   master's    report 142 

confirming  sale  and  for  deficiency  decree 148 

form   of    confirming   master's    report    of   partition    sale 

and  directing  distribution 155 

form  of,  directing  master's  fees  to  be  paid 137 

Origin  of  equity  courts 7 

Oyer 24 

Parties    112 

plaintiff   112 

defendant   113 

necessary    113 

indispensable     113 

dispensable    113 

proper    114 

necessary    113 

unnecessary 114 

chart    of 115 

citizenship  of  to   be  stated 21 

objections   as   to    116 

want    of    dispensable    parties    must    be    raised    by    de- 
murrer, plea  or  answer 46 

want  of  stated  in  answer 46 

demurrer  for  want  of,  or  as  to  character  of 37 

omission  of  in  federal  court 188 

persons  not  parties,  in  federal  courts 176 

beyond  jurisdiction,  in  federal  courts 180 

obtaining  jurisdiction  over  parties  beyond  the  district..  118 

to  cross-bill    30 

as  to  joining  unwilling  party  complainant 117 

curing    defects    of 116 

defects  of  in  federal  courts 189 

Passed  cases  in  cook  county 164 

Petition    13 

Plea  39 

form  of   125 

must  be  under  oath 41 

affidavit,  signing,  verifying   125 

purpose  of   43 

pure  plea    39 

negative   plea    39 

grounds    of    41 

to  the  person 42 

to  jurisdiction    41 

to  substantial  matters  of  bill 42 

denying  plaintiff's  right  to  sue 42 

of   laches    42 

of  statute  of  frauds 42 


389 

Plea — Continued.  page 

of  statute  of  limitations 42 

allegations,   effect   of 41 

no  answer  with  plea  except  in  certain  cases 39 

testing  legal  sufficiency  of 40 

effect  of  going  to  hearing  upon  bill,  plea  and  replica- 
tion   41 

failure   to   reply  to,   or  to   set  down   for  argument   in 

federal  court 185 

acts  constituting  waiver  of  plea 41 

Pleadings 

abstract  of  91 

copies  to  be  filed  in  Cook  county 166 

denial  of  execution  of  instrument  must  be  upon  oath . .  48 

extending  time  to  plead 56 

meeting  new  mattei  of  the  answer 17 

Prayer   for  relief 19 

Prayer  for  process 19 

Procedure  in  master's  office  in  Chicago 82 

Process 

prayer  for   19 

prayer  for  in  federal  courts 180 

final,    federal    175 

Pbochein  ami  for  infants  in  federal  court 203 

Proof     (see  Evidence) 

Reason    and   law 9 

Receiver  105 

nature   of   appointment 107 

grounds  of  appointment 106 

control   over    property 107 

situs  of  property 106 

of   corporation    108 

for   a   trustee 107 

bond  instead  of 108 

leave   to   sue 109 

notice  of  filing  reports  of  in  Cook  county 166 

Record 

of  cause  must   contain   evidence 73 

chancery,    in    Illinois 102 

of  all   pleadings  and   files   may  be   made   any   time   in 

Cook  county    166 

Reference 

order  of  to  master 59 

what  cases  subject  to  refer 59 

in  federal  court  all  the  issues  in  a  cause  cannot  be  re- 
ferred to  master  except  by  consent 61 

divorce   cases   in   Illinois 60 

master  cannot  act  except  upon  order 59 


390 


Reference — Continued.  page 

order  should  show  what  matter  referred 61 

form  of  order  of  to  master 130 

form  of  order  to  state  account 131 

form  of  order  as  to  alimony 132 

to    state    account 62 

when    order    not    necessary 59 

proceedings  upon  in  federal  court 199 

costs    of 59 

Register,  chancery  to  be  kept 166 

Rehearing    26 

in  federal  court 203 

Replication  51 

special    51,     52 

form  of   129 

amendment  to  bill  instead  of 51 

in   federal  court 187,  194 

if  notice  of  answer  filed  is  given   replication  must  be 

filed  in  four  days 52 

acts  held  to  waive  filing  of 51 

Report 

of  master,  what  to  contain 63 

form  of  master's 133 

of  master  in  federal  court 200 

return  and  entry  of  master's  report  in  federal  court 202 

form  of  master's  in  partition  suit 153 

of  distribution  in  partition  suit 156 

Restraining  orders    104 

Rights  independent  of  legislatures,  rulers,  judges,  or  mobs  . .       8 

Revivor  of  suit,  in  federal  court 191 

Revivor  and  supplement 191 

Rule  day.  federal  court 173 

Sale,  report  of  by  master,  form 147 

Scandal    •     25 

and   impertinence  in   federal   court,   exceptions 181 

Sickness  of  solicitor  in  cook  county 163 

Solicitors,  withdrawal  of  in  cook  county 165 

Special  commissioners    67 

Special  master   67 

Stare  decisis,   what  is 7 

Stating  part  of  bill 16 

Statute  law,  what  is  proper 8 

Subpoena 

for  witness  89 

issuance  in  federal  court 176 

return  of  in  federal  court 176 

manner  of  service  in  federal  court 177 

duces  tecum    90 


391 

PAGE 

Summons,  foem  of 124 

Supplemental  bill  14    26  191 

amendments  by   53 

Testimony     (see  Evidence) 

Time  to  file  pleading 34 

Title 

to  sue   16,  20,  38 

plea  denying  plaintiff's  title 42 

Trial  calendar,  cook   county 163 

Ultimate    facts    21 

Usury,  allegation  of  specific  facts 23 

Witness    g9 

subpcena  duces  tecum 90 

in  federal  court 200 

oath  in  Illinois   90 

fees  of  39 

Writ  of  assistance,  federal 176 


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